# C/M of Krishna Sahkari Awas Samiti Ltd., Kanpur Nagar & Ors v. State Of U.P. & Ors

- **Citation:** (2022) 3 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** Writ C No. 17979 of 2021
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-of-krishna-sahkari-awas-samiti-ltd-kanpur-nagar-ors-v-state-of-u-p-ors-48273
- **Pages:** 7

## Headnote

A. Civil Law - U.P. Coopeartive Societies
Act, 1965- Sections 128 & 98 (n)- Consent
of parties will not confer jurisdiction of appeal
where none has been vested by law. Similarly
failure to raise the objection in regard to the
jurisdiction to entertain the appeal will not cure
the defect of inherent lack of jurisdiction in the
case. It is true that issue of jurisdiction has to
be raised at the earliest stage. However, it is
equally well-settled that the plea regarding
inherent lack of jurisdiction can be taken at any
stage and also in collateral proceedings.

Writ Petition Allowed. (E-12)

List of Cases cited:-

## Text

976 INDIAN LAW REPORTS ALLAHABAD SERIES
has been made against them. Moreover, the
case of the State is specific to the effect that
ration was withdrawn of the dormant
cardholders. Thus, no question arises for
anyone coming forward and making
complaint.

106. In Ekta Shakti Foundation
(supra), Apex Court had clearly laid down
the concept of equality, as envisaged under
Article 14 of the Constitution, which is a
positive concept and cannot be enforced in a
negative manner. The petitioners were under
the obligation to prove their case, rather
shifting the burden and blame upon the State.

107. Considering the facts and
circumstances of the case, this Court finds
that no interference is required in the order
dated
25.11.2019
passed
by
District
Magistrate.

108. In the result, the writ petition fails
and is hereby dismissed.

109. Similarly, in all the other
connected matters, this Court declines to
interfere in the order of cancellation passed
by District Supply Officer and the same
having been affirmed by the District
Magistrate, cancelling the licence of the fair
price shops in question.

110. All the writ petitions are hereby
dismissed.
----------
(2022)03ILR A976
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.01.2022

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ C No. 17979 of 2021
C/M of Krishna Sahkari Awas Samiti Ltd.,
Kanpur Nagar & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Krishna Mohan Misra, Sri Abhishek
Misra, Sri H.R. Misra

Counsel for the Respondents:
C.S.C., Sri Manish Pandey, Sri Radhey
Krishna Pandey, Sri Sunil Kumar Misra, Sri
Rakesh Pande

A. Civil Law - U.P. Coopeartive Societies
Act, 1965- Sections 128 & 98 (n)- Consent
of parties will not confer jurisdiction of appeal
where none has been vested by law. Similarly
failure to raise the objection in regard to the
jurisdiction to entertain the appeal will not cure
the defect of inherent lack of jurisdiction in the
case. It is true that issue of jurisdiction has to
be raised at the earliest stage. However, it is
equally well-settled that the plea regarding
inherent lack of jurisdiction can be taken at any
stage and also in collateral proceedings.

Writ Petition Allowed. (E-12)

List of Cases cited:-
1. A.V. G.P. Chettiar & Sons & ors. Vs T.
Palanisamy Gounder, (2002) 5 SCC 337

2. Arcot Textile Mills Ltd. Vs The Regional Provident
Fund Commissioner & ors., (2013) 16 SCC 1

3. Hindustan Zinc Ltd. Vs Ajmer Vidyut Vitran
Nigam Ltd., (2019) 17 SCC 82

4. Kiran Singh & ors. Vs Chaman Paswan &
ors., (1955) 1 SCR 117

5. Zuari Cement Ltd. Vs Regional Director,
Employees'
State
Insurance
Corporation,
Hyderabad & ors., (2015) 7 SCC 690

(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Krishna Mohan Misra,
learned counsel for the petitioners, learned
3 All. C/M of Krishna Sahkari Awas Samiti Ltd., Kanpur Nagar & Ors. Vs. State of U.P. & Ors. 977
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

2. The petitioner-committee of
management has assailed the order dated
22.06.2021
entered
by
the
learned
appellate authority /Joint Secretary, Cooperative 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 petitionercommittee 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
Gounder1.

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, Cooperatives Department, U.P. Awas &
Vikas Parishad, Lucknow.

8. Section 128 of the U.P. Cooperative Societies Act, 1965 being
relevant to the controversy is extracted
hereunder for ease of reference:

"Section
128.
Registrar's
powers to annul resolution of a cooperative
society
or
cancel
order
978 INDIAN LAW REPORTS ALLAHABAD SERIES
passed by an officer of a co-operative
society in certain cases. - The Registrar
may -

(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 resolution, or as the case
may be, the order, within such period as he
may fix but which shall not be less than
fifteen days, and if he deems fit may stay
the operation of that resolution or the order
during such period]"

9. The competent authority/Additional
Housing
Commissioner/Additional
Registrar, Co-operatives Department, U.P.
Awas & Vikas Parishad, Lucknow while
passing the order dated 31.12.2018 under
Section 128 of the U.P. Cooperative
Societies Act, 1965 directed the committee
of management of the society to review the
order dated 19.12.2017.

10. In compliance of the said order,
the petitioner-committee of management
re-examined the issue but with no better
results for the respondent No.5. The
resolution passed by the committee of
management of the cooperative societies on
17.02.2019 in this regard declined to recall
the
resolution
dated
19.12.2017
and
reaffirmed the same.

11. Validity of the said resolutions
were thereafter examined by the Additional
Housing
Commissioner/Additional
Registrar, Co-operatives Department, U.P.
Awas & Vikas Parishad, Lucknow under
Section 128 of the U.P. Cooperative
Societies Act, 1965 on a representation
made by the respondent No.5. The
Additional
Housing
Commissioner/Additional Registrar, Cooperatives Department, U.P. Awas & Vikas
Parishad,
Lucknow
by
order
dated
04.06.2019 under Section 128 of the U.P.
Cooperative Societies Act, 1965 upheld the
decisions of the committee of management
and rejected the representation of the
respondent No.5.

12. The respondent No.5 appealed the
order dated 04.06.2019 passed by the
Additional
Housing
Commissioner
/Additional
Registrar,
Co-operatives
Department, U.P. Awas & Vikas Parishad,
Lucknow under Section 128 of the U.P.
Cooperative Societies Act, 1965. The
appeal purportedly filed under Section
98(n) of the U.P. Cooperative Societies
Act, 1965 by the respondent No.5 was
instituted before the learned appellate
authority / Joint Secretary, Co-operative
Housing, U.P. Government, Lucknow, and
came to be registered as Appeal No.21 of
2019 (Ambar Tripathi Vs. Additional
Housing
Commissioner/Additional
Registrar, Housing, Lucknow and another).

13. The learned appellate authority /
Joint Secretary, Co-operative Housing, U.P.
Government, Lucknow by the impugned
3 All. C/M of Krishna Sahkari Awas Samiti Ltd., Kanpur Nagar & Ors. Vs. State of U.P. & Ors. 979
order dated judgment dated 22.06.2021 has
allowed the said appeal. The impugned order
invalidates the resolution passed by the
committee of management on 13.11.2017,
and also the order dated 04.06.2019 passed
by the Additional Housing Commissioner/
Additional
Registrar,
Cooperative
Department, U.P. Awas & Vikas Parishad,
Lucknow/competent authority under Section
128 of the U.P. Cooperative Societies Act,
1965.

14.

The
preliminary
issue
of
maintainability of the appeal shall be decided
in the first instance.

15. The powers of appeal are vested in
the appellate authority under Section 98 (n)
of the U.P. Cooperative Societies Act, 1965.
The controversy turns on the scope of the
said provision and the same is extracted
below for ease of reference:

"98(n) an order passed by the
Registrar under Section 128 annulling any
resolution or cancelling any order, may,
within thirty days of the communication of the
order, decision or award to be appealed
against, be preferred by the aggrieved party
to the authorities mentioned in sub-section
(2) in the manner prescribed."

16. The order dated 04.06.2019, which
was appealed before the learned appellate
authority/Joint
Secretary,
Cooperative
Housing, U.P. Government, Lucknow clearly
did not fall within the ambit of Section 98(n)
of the U.P. Cooperative Societies Act, 1965
as reproduced above. The order 04.06.2019
does not annul any resolution nor cancel any
order as contemplated in Section 98(n) of the
U.P. Cooperative Societies Act, 1965.

17. It is well settled law that the
appeal is a creature of the statute. The
scope of the appellate jurisdiction is
defined and circumscribed by statute. The
appeal in issue is relatable to Section 98(n)
of the U.P. Cooperative Societies Act,
1965. The appellate authority cannot go
beyond the statutory mandate of Section
98(n) of the U.P. Cooperative Societies
Act, 1965. In this case admittedly it has
done so.

18. The discussion has the advantage
of good authorities. While deciding the
scope of appellate jurisdiction, the Supreme
Court in Arcot Textile Mills Ltd. Vs. The
Regional Provident Fund Commissioner
and others2 has held as under:

"17. Ms. Aparna Bhat, learned
counsel for the respondent Nos. 1 to 3 would
contend that the payment of interest by the
employer in case of belated payment is
statutorily leviable and a specified rate having
been provided, the authority has no discretion
and, therefore, it is only a matter of
computation and there cannot be any challenge
to it. Be it noted, it was canvassed by the said
respondents before the High Court that an
appeal would lie against an order passed under
7Q. On a scrutiny of Section 7I, we notice that
the language is clear and unambiguous and it
does not provide for an appeal against the
determination made under 7Q. It is well settled
in law that right of appeal is a creature of
statute, for the right of appeal inheres in no one
and, therefore, for maintainability of an appeal
there must be authority of law. This being the
position a provision providing for appeal
should neither be construed too strictly nor too
liberally, for if given either of these extreme
interpretations, it is bound to adversely affect
the legislative object as well as hamper the
proceedings before the appropriate forum.
Needless to say, a right of appeal cannot be
assumed to exist unless expressly provided for
by the statute and a remedy of appeal must be
980 INDIAN LAW REPORTS ALLAHABAD SERIES
legitimately
traceable
to
the
statutory
provisions. If the express words employed in a
provision do not provide an appeal from a
particular order, the court is bound to follow
the express words. To put it otherwise, an
appeal for its maintainability must have the
clear authority of law and that explains why
the right of appeal is described as a creature of
statute. (See: Ganga Bai v. Vijay Kumar and
others[3], Gujarat Agro Industries Co. Ltd. v.
Muncipal Corporation of the City of
Ahmedabad and Ors.[4], State of Haryana v.
Maruti Udyog Ltd. and others[5], Super
Cassettes Industries Limited v. State of U.P.
and another[6], Raj Kumar Shivhare v.
Assistant
Director,
Directorate
of
Enforcement and
another[7], Competition,
Commission of India v. Steel Authority of
India Limited and another [8]" (emphasis
supplied)

19. Consent of parties will not confer
jurisdiction of appeal where none has been
vested by law. Similarly failure to raise the
objection in regard to the jurisdiction to
entertain the appeal will not cure the defect
of inherent lack of jurisdiction in this case.
It is true that issue of jurisdiction has to be
raised at the earliest stage. However, it is
equally well settled that the plea regarding
inherent lack of jurisdiction can be taken at
any
stage
and
also
in
collateral
proceedings. Ample authorities in point
support these propositions.

20. Hindustan Zinc Limited Vs.
Ajmer Vidyut Vitran Nigam Limited3
reaffirmed the well settled position of law
by holding as under:

"We are of the view that it is
settled law that if there is an inherent lack
of jurisdiction, the plea can be taken up at
any
stage
and
also
in
collateral
proceedings."

21. Kiran Singh and others Vs.
Chaman Paswan and others4 affirmed
that lack of jurisdiction nullifies the order
and challenge to its validity can be set up at
any point or forum whenever the order is
sought to be enforced or relied upon by
holding thus:

"20....It
is
a
fundamental
principle well-established that a decree
passed by a Court without jurisdiction is a
nullity, and that its invalidity could be set
up whenever and wherever it is sought to
be enforced or relied upon, even at the
stage of execution and even in collateral
proceedings. A defect of jurisdiction,
whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter
of the action, strikes at the very authority of
the Court to pass any decree, and such a
defect cannot be cured even by consent of
parties.
If
the
question
now
under
consideration fell to be determined only on
the
application
of
general
principles
governing the matter, there can be no doubt
that the District Court of Monghyr was
coram non judice, and that its judgment and
decree would be nullities." (emphasis
supplied)

22 . In Zuari Cement Limited Vs.
Regional Director, Employees' State
Insurance Corporation, Hyderabad and
others5 it was held that acquiescence to
jurisdiction where the authority lacked the
same is of no avail:

"Para 12. As discussed earlier, in
terms of Section 87 of the Act, only the
appropriate government has the power to
grant
exemption
to
a
factory
or
establishment or class of factories or
establishments from the operation of the
Act. In fact, the appellant-factory itself has
obtained exemption from the appropriate
3 All. C/M of Krishna Sahkari Awas Samiti Ltd., Kanpur Nagar & Ors. Vs. State of U.P. & Ors. 981
Government-State
Government
under Section 87 of the Act for the period
from 1986 to 1993. Likewise, the rejection
of exemption was also under Section 87 of
the Act. While so, seeking the relief of
declaration from the ESI Court that the
appellant is entitled to exemption from the
operation of the Act is misconceived.
Contrary to the scheme of the statute, the
High Court, in our view, cannot confer
jurisdiction
upon
the
ESI
Court
to
determine the issue of exemption. ESI
Corporation, of course, did not raise any
objection and subjected itself to the
jurisdiction of the ESI Court. The objection
as to want of jurisdiction can be raised at
any stage when the Court lacks jurisdiction,
the fact that the parties earlier acquiesced in
the proceedings is of no consequence."

Before
considering
the
correctness of the decision of the High
Court, we take up for consideration a
preliminary objection raised by the
appellants
that
the
appellants
were
estopped from impugning the High
Court's
decision
because
they
had
requested for time to vacate the suit
premises and such request had been
granted by the High Court. The objection
is unsustainable. First, an objection to the
maintainability of the appeal, like other
points of demurrer, may be relevant at the
time of the admission of the appeal. Once
the appeal is admitted without reserving
the issue of maintainability and the
matter is heard on merits, such a
preliminary objection does not survive.
Second, the appellants had no doubt
requested for a stay of the execution of
the decree. That had been granted by the
High Court subject to furnishing of an
undertaking by the appellants to vacate
the premises within a period of six
months. The appellants did not in fact
give any such undertaking. Even if they
had, they could not be denied the right to
appeal to this Court on any principle of
estoppel unless the respondent could
show that the appellants had thereby
gained an advantage which was otherwise
not available to them; for example, if the
appellants had given an undertaking and
obtained a stay of the order of eviction
beyond the period allowed for preferring
the appeal or if the landlord had
consented not to execute the decree of
eviction
in
consideration
of
the
appellants' undertaking to vacate . If such
or other like circumstances exist, this
Court may have refused to exercise
discretion
in
favour
of
the
tenant
under Article 136 of the Constitution.
Otherwise merely giving an undertaking
does not foreclose a tenant from availing
of any statutory remedies available to him
by way of appeal or revision or under the
Constitution."

23. The judgment being relied upon
by the learned counsel for the respondents
handed down in A.V.G.P. Chettiar and
Sons and others Vs. T.Palanisamy
Gounder6. In that case the objection to the
jurisdiction was not taken before the High
Court where the proceedings were pending.
In the instant case the matter was being
adjudicated by an appellate authority
created by the Uttar Pradesh Cooperative
Societies
Act,
1965.
The
distinction
between the constitutional courts and
statutory authorities is obvious to be stated.
Reliance on A.V.G.P. Chettiar and Sons
(supra) by the learned counsel for the
respondents is misconceived. The ruling is
not applicable to this case.

24. The impugned order dated
22.06.2021 passed by the learned appellate
authority/Joint
Secretary,
Cooperative
982 INDIAN LAW REPORTS ALLAHABAD SERIES
Department, U.P. Government, Lucknow
has been passed despite inherent lack of
jurisdiction and is a nullity in the eyes of
law.

25. In the wake of preceding
discussions,
the
impugned
order
22.06.2021 is vitiated. The impugned order
dated 22.06.2021 passed by the learned
appellate
authority/
Joint
Secretary,
Cooperative
Department,
U.P.
Government, Lucknow is liable to be set
aside and is set aside.

26. The writ petition is allowed.

27. It is open to the respondents to
avail any other alternative remedy as may
be advised in law.
----------
(2022)03ILR A982
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.01.2022

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 27869 of 2021

Kanika Construction, Meerut ...Petitioner
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioner:
Sri Nipun Singh, Sri Jitendra Kumar, Sri
Vikas Tripathi, Sri Vivek Chaubey

Counsel for the Respondents:
C.S.C.

A. Maintainability of a writ petition in
contractual
matters
where
monetary
claims are sought to be raised.- Where the
instrumentalities of the State act unfairly,
unjustifiably, unreasonably or arbitrarily in
discharge of contractual obligations, the same
would be held to be violative of Article 14 and
the aggrieved party cannot be precluded from
invoking the writ jurisdiction under Article 226
of the Constitution of India nor the court would
be denuded of its power of granting proper
reliefs.

Writ Petition Allowed. (E-12)

List of Cases cited:-
1. M/S Bio Tech Systems Vs St. of U.P. & ors.,
2020 (11) ADJ 488 (DB)

2. ABL International Ltd. & anr. Vs Export
Credit Guarantee Corp. of India Ltd. & ors.,
(2004) 3 SCC 553

(Delivered by Hon'ble Manoj Kumar Gupta, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Nipun Singh, learned
counsel for the petitioner and learned
Standing Counsel for the State-respondents.

2. The present petition has been filed
seeking a direction to the Respondent no.2
for payment of an amount which is stated
to be due and admitted.

3. Pleadings in the petition indicate
that in pursuance of certain advertisement
inviting tenders for running community
kitchen at Baijal Bhawan, Meerut and
Olivia
Hotel,
Meerut,
the
petitioner
company submitted its offer. It was duly
accepted and in pursuance thereof, it
provided the service of community kitchen
at above two places during COVID period.
By letter dated 4.6.2020, Respondent no.4
directed
the
petitioner
to
close
the
community kitchen w.e.f. 6.6.2020. A three
member Committee had duly verified the
quality and quantity of food packets
supplied by the petitioner in pursuance of