# C/M Gandhi Grah Nirman Sahkari Ltd. Varanasi v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-05
- **Bench:** Rajan Roy, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-gandhi-grah-nirman-sahkari-ltd-varanasi-v-state-of-u-p-ors-50038
- **Pages:** 5

## Headnote

A. UP Cooperative Societies Act, 1965 -
Sections
29
(4-B)
&
35
-
UP
St.
Cooperative Societies Election Rules, 2014
- R. 8 - Proviso & R. 12 - Five years term
of Committee of Management expired -
An interim management committee was
constituted u/s 29(4-B) - An employee of
Housing Dept. was made member -
Validity challenged - Whether the order
can be treated as an order passed u/s 35
providing suspension of Committee -
Held, there is no prohibition in appointing
an employee as part of the interim
managing committee u/s 29(4-B) - Held
further, order cannot be treated as one
passed u/s 35 because the latter provision
speaks of supersession or suspension of
committee of management, whereas there
is
no
question
of
supersession
or
suspension of committee of management
after the term has already expired - It is
an order passed u/s 29(4-B) - High Court
issued
direction
for
conducting
the
election. (Para 5, 6, 11, 14 and 17)
Writ petition disposed off. (E-1)

## Text

4 All. C/M Gandhi Grah Nirman Sahkari Ltd. Varanasi Vs. State of U.P. & Ors.
897
(2023) 4 ILRA 897
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.04.2023

BEFORE

THE HON'BLE RAJAN ROY, J.
HE HON'BLE MANISH KUMAR, J.

Writ-C No .2282 of 2023

C/M Gandhi Grah Nirman Sahkari Ltd.
Varanasi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anurag Kumar Singh

Counsel for the Respondents:
C.S.C., Sri Gaurav Mehrotra, Sri Rakesh
Kumar Chaudhary

A. UP Cooperative Societies Act, 1965 -
Sections
29
(4-B)
&
35
-
UP
St.
Cooperative Societies Election Rules, 2014
- R. 8 - Proviso & R. 12 - Five years term
of Committee of Management expired -
An interim management committee was
constituted u/s 29(4-B) - An employee of
Housing Dept. was made member -
Validity challenged - Whether the order
can be treated as an order passed u/s 35
providing suspension of Committee -
Held, there is no prohibition in appointing
an employee as part of the interim
managing committee u/s 29(4-B) - Held
further, order cannot be treated as one
passed u/s 35 because the latter provision
speaks of supersession or suspension of
committee of management, whereas there
is
no
question
of
supersession
or
suspension of committee of management
after the term has already expired - It is
an order passed u/s 29(4-B) - High Court
issued
direction
for
conducting
the
election. (Para 5, 6, 11, 14 and 17)
Writ petition disposed off. (E-1)
(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Manish Kumar, J.)

1. This petition has been filed by
Committee of Management Gandhi Grah
Nirman Sahkari Samiti Ltd. seeking the
following reliefs:-

i) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 01.02.2023, passed
by opposite party number 4, contained as
Annexure No.1 to the writ petition;

ii) Issue a writ, order or direction
in the nature of mandamus commanding
the opposite party number 2 to hold the
election of the Committee of Management
of Gandhi Grah Nirman Sahkari Samiti
Limited, Varanasi forthwith.

iii) Issue a writ, order or
direction in the nature of mandamus
commanding the opposite party number 3
to allow the petitioner Committee of
Management to manage affairs of the
Society till the elections are held."

2. It is not in dispute that term of the
Committee of Management has expired
and elections to the same could not be
held prior to expiry of the said term. In
these circumstances, Additional Registrar
Co-operative Society pertaining to the
Cooperative Housing Society has issued
the
impugned
order
on
01.02.2023
constituting
an
interim
management
committee
u/s
29(4-B)
of
U.P.
Cooperative
Societies
Act,
1965
comprising of five members including
Cooperative Officer (Housing), Varanasi
who happens to be an employee of the
Housing Department of the Government.
898 INDIAN LAW REPORTS ALLAHABAD SERIES

3. With regard to validity of this
constitution
of
interim
management
committee petitioner's contention is that
opposite party No.5 being an employee of
the Housing Department cannot function as
an Election Officer in view of Proviso to
Rule 8 of the U.P. State Cooperative
Societies Election Rules, 2014, but, after
notification of the election by the Election
Commission, which in fact has lapsed, he is
sending information pertaining to the voter
list and valid members to the District
Magistrate, which is a function, only the
Election Officer can perform after he is
appointed and in this regard. He has placed
before the Court relevant provisions of the
Rules.

4. On the other hand, it is informed
that as per Rule 12 of the aforesaid Rules,
2014, the Secretary or the Managing
Director of the society are empowered to
prepare a list of all voters against whose
name, disqualification, if any, as described
in the Act, the Rules, 2014 or bye-laws, are
to be mentioned and the members, ordinary
members or sympathizers, duly enrolled
120 days before the date of election, in
accordance with direction given by the
Commission from time to time or the
provisions for the time being in force,
therefore, this function has to be performed
by the interim managing committee which
comprises of five members, of which
Cooperative Officer Housing is only one of
them.

5. We find that there is no prohibition in
appointing him as part of the interim
managing committee u/s 29(4) B of the Act,
1965. It is also informed that ultimately the
provisional voter list is to be published by the
Election Officer under Rule 13 and,
thereafter, it has to be finalized by the same
officer, therefore, merely because some
information is being sent by the interim
management committee of which the said
officer is a part, this will not give a cause to
the petitioner to challenge its constitution.

6. Term of every committee of
management of a Cooperative Society is
defined under Section 29(2)(a) as 5 years and
the term of the elected members of the
committee of management shall be coterminus with the term of such committee.

7. As per sub-section 4-A of Section 29
of the Act, 1965, due to any reason, whats
over, if members of the management
committee have not elected and could not get
elected before expiry of its five years tenure
then committee of management shall cease to
exist after expiry of its term notwithstanding
anything to the contrary in any other
provision of the Act, 1965, or the Rule made
thereunder or the bye-laws of the society and
in this eventuality Section 4-B comes into
play and Registrar appoints an interim
management committee.

8. We find merit in the contention of the
opposite party firstly, for the reason, the order
impugned contained in Annexure No.1 is an
order passed u/s 29(4-B) of the Act, 1965;
secondly this order cannot be treated as one
passed u/s 35 because the latter provision
speaks of supersession or suspension of
committee of management, whereas there is
no question of supersession or suspension of
committee of management after the term has
already expired. The order impugned dated
01.02.2023 is one passed u/s 29(4-B)
providing
for
an
interim
management
committee after the elected managing
committee has ceased to exist.

9. Much emphasis was laid by learned
counsel for the petitioner relying upon one
of the grounds on which supersession or
4 All. C/M Gandhi Grah Nirman Sahkari Ltd. Varanasi Vs. State of U.P. & Ors.
899
suspension
of
the
committee
of
management can be ordered u/s 35, that is,
when the committee of management has
failed to conduct election in accordance
with the provisions of the Act, 1965 before
the expiry of the term of the committee of
the management. However, we are not
impressed by this argument for the reason
that the committee of management firstly
does not conduct the election and as of now
elections are to be conducted as per
direction of the Election Commission,
secondly, as already stated words "has
failed to conduct election in accordance
with provision of this Act before the expiry
of
the
term
of
the
committee
of
management" will have to be understood
and applied reasonably considering the fact
that elections are to be conducted on the
directions of the Election Commission and
not by the committee of management,
therefore, these words, have to be read
conjointly with Section 29 of the Act, 1965
relating to the committee of management.
We may in this regard refer to sub-section
3 of Section 29 of the Act, 1965, according
to
which,
election
to
re-constitute
committee
of
management
of
every
Cooperative Society shall be completed in
the
prescribed
manner
under
the
superintendence, control and direction of
the Election Commission at least 15 days
before the expiry of the term of the
committee
of
management
and
the
members so elected shall replace the
committee of management whose terms
expired under sub-section (2). Sub-section
4 says that 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
as may be fixed by it. Therefore, the words
referred in Section 35 as quoted hereinabove have to be read conjointly with subsection (4) of Section 29 and it is when the
Secretary or the Managing Director of the
Cooperative Society fails to send to the
election commission four months before
the expiry of its term a requisition for
conducting the election and also fails to
furnish all such information as required by
the Election Commission within such
period as may be fixed by it that provision
of Section 35 of the Act, 1965 would be
attracted. Moreover, these provisions are as
already stated would be attracted in a case
where the term of management committee
has
not
expired
or
the
Managing
Committee has not ceased to exist. It will
not apply to a case where the term of
managing committee has already expired or
it has ceased to exist. This is obvious, as,
any supersession or suspension of a
committee of management can take place
only when the Managing Committee still
exists and/or its term has not expired. There
is
no
question
of
supersession
or
suspension
of
a
committee
of
the
management when it has already ceased to
exist or its term has expired. The action
envisaged under Section 35 of the Act,
1965 is somewhat penal in nature, whereas,
the provision of Section 29(4-B) of the Act,
1965 is not so. The latter provision only
provides for a stop gap arrangement for
facilitating management of a Cooperative
Society when the elected management
committee has ceased to exist or its term
has expired. The scope of the two
provisions is very different.

10. Moreover, we find that as per the
fourth Proviso to Section 35 of the Act,
1965, the Registrar is divested of any
power to supersede or suspend a committee
900 INDIAN LAW REPORTS ALLAHABAD SERIES
of management of any Cooperative Society
where there is no Government share
holding or loan or financial assistance or
any guarantee by the Government. It is the
petitioner's own case that the society at
hand is covered by the said Proviso,
therefore,
there
is
no
question
of
application of Section 35 and this is an
additional reason why the order impugned
herein cannot be treated as one having been
passed under Section 35.

11. From the above discussion, it is
apparent that the order impugned dated
01.02.2023 has been passed after expiry of
the term of the committee of management
of the Cooperative Society on 30th January,
2023. It is thus an order under Section
29(4-B) of Act,1965.

12. As regards the contention of the
petitioner's counsel that it is impermissible
for an officer of the Housing Department to
be made part of the interim management,
we do not find any such provision in the
Act, 1965 or any Rule made thereunder,
prohibiting the inclusion of any such
officer
in
the
interim
management
committee. Reliance placed by the learned
counsel for the petitioner on the Proviso to
Rule 8 in this regard is misplaced as, the
said
Proviso
merely
says
that
no
officer/employee
of
the
department
concerned with the management and
administration of the society shall be
appointed as Election Officer. It is not the
case that the said officer who has been
made part of the interim management has
been appointed as Election Officer. The
Proviso to Rule 8 cannot be read to mean
that in the interim managing committee no
such officer can be included.

13. As regards as the contention of the
learned counsel for the petitioner that as
part of the interim managing committee,
the said officer is preparing the list of
voters is concerned, the same is also not
acceptable for the reason as per Rule 12 of
the Rules 2014, it is the Secretary or the
Managing Director of the society who are
required to prepare a list of all voters
referred therein. Assuming for a moment
that this work is to be performed by the
interim management committee, we may in
this context, refer to sub-section 4-C of
Section 29, according to which, the interim
managing committee appointed under subsection 4(B) shall exercise the powers and
perform the functions of the managing
committee under this Act, subject to the
directions given by the Registrar from time
to
time.
In
view
of
this,
interim
management
committee,
unless
any
member
of
the
interim
management
committee is functioning as Secretary or
Managing Director of the Cooperative
Society or the post of Secretary of society
is separate, it is the interim management
committee which will have to perform the
obligations as mentioned in Rule 12 of the
Rules 2014. The preparation of list of
voters referred in Rule 12 is not a final
exercise but is only a preliminary exercise
to provide requisite list of voters to the
Election Officer and ultimately it is the
Election Officer, who has to publish the
provisional
voter
list
prepared
in
accordance with Rule 12 and thereafter, the
said list of voters would be finalized by the
Election Officer in terms of Rule 37 read
with Rule 38 of Rules 2014. Therefore, the
provisional list prepared under Rule 12
does not itself become the final list and
ultimately it is the Election Officer, who
has to finalized the same after considering
objection thereto, if any. Moreover as
already stated, the officer of the Housing
Department is only one of the members of
the
interim
management
committee.
4 All. Ripunjay Rai Vs. State of U.P. & Ors.
901

14. We are therefore not persuaded by
this argument to hold that his inclusion in
interim
managing
committee
is
not
permissible in law and we reject this
contention.

15. Now the only issue which remains
to be considered is with regard to holding
of
elections
to
the
committee
of
management of the Cooperative Society in
question. In this regard, Shri Gaurav
Mehrotra
informed
that
earlier
a
notification for election was issued but on
account of non-provision of list of voters
by the Secretary or Managing Director of
the Cooperative Society, the process could
not be completed and now it will have to be
re-notified and in this process the interim
managing committee will have to provide
relevant information as envisaged in Rule
12 of Rules 2014 including the list of
voters.

16. In view of above, we provide that
the interim management committee or if
there is any Secretary or Managing
Director shall undertake an exercise in this
regard in terms of Rule 12 at the
appropriate stage and provide requisite
information to the Election Commission in
accordance with law and the Election
Commission on its part shall proceed to
notify the election and ensure that it is held
in fair and objective manner in accordance
with law, at the earliest.

17. We further direct the interim
management committee to undertake the
aforesaid exercise as envisaged in Rule 12
straightaway without waiting for the
notification of Election by the Commission,
so that as soon as the elections are notified
the information is ready at their level for
being forwarded to the concerned officer or
the Election Commission as the case may
be, and elections may not get delayed,
postponed or cancelled only on account of
any omission on its part. The aforesaid in
our opinion shall meet the ends of justice
and redress the grievance of the petitioner,
if any. So far as the impugned order
Annexure No.1 is concerned, we find no
reason to interfere with it.

18. Writ petition is disposed of in the
aforesaid terms.
----------
(2023) 4 ILRA 901
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2023

BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-C No .2298 of 2023

Ripunjay Rai ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Kumar Rai

Counsel for the Respondents:
C.S.C., Sri Ashok Kumar Maurya, Sri
Rameshwar Prasad Shukla, Sri Vijay Bhan
Singh

A. Civil Law - U.P. Land Revenue Act, 1901
- Sections 33/39 & 219 - Proceeding
arising out of expungement of the name
from the revenue records - Report of
Revenue Inspector, supported by Akaar
Patra 45, reveals that the plot, in question
is recorded as pond along with some other
sharers under the capacity of bhumidar
with
transferable
rights
-
Nonconsideration of the report - Effect - High
Court quashed the impugned orders on
the
ground
of
non consideration
of
material placed before the Authority.
(Para 9, 10 and 11)