# Hariraj Singh Choudhary v. State of U.P. & Ors

- **Citation:** (2022) 8 ILRA 164
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-03
- **Case number:** Writ C No. 20356 of 2022
- **Bench:** Surya Prakash Kesarwani, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hariraj-singh-choudhary-v-state-of-u-p-ors-48733
- **Pages:** 6

## Headnote

A. Civil Law-UP Cooperative Societies Act,
1965-UP
Cooperative
Societies
Rules
1968-Rules 457, 458, 459, 464 & 465Petitioner elected as Chairman of the
Committee of Management of the District
Cooperative
Bank
Limited-elected
members of the committee presented a
notice for no confidence motion-meeting
was adjourned by the Presiding Officer on
the
first
occasion
for
administrative
reasons and on the second event on
account of being Corona positive-21 days
prior notice to be given for holding a
meeting for purpose of consideration of
proposed no confidence motion against a
cooperative society-Giving of adequate
time as provided in second proviso of Rule
458 is necessary because members of
Cooperative
Society
can
make
due
arrangements
for
attending
meeting.
(Para 1 to 14)
The petition is dismissed. (E-6)

## Text

164 INDIAN LAW REPORTS ALLAHABAD SERIES
inconsistent judgments. There will also be
an avoidable delay in decision of the
controversy and may even result in
miscarriage of justice.

16. The courts in proceedings under
Section 67 of the Code are under obligation
of law to decide the eligibility of the
noticee for protection under Section 67(A)
of the Code. In case defence under Section
67(A) of the Code is taken by the noticee,
the said proceedings shall be registered
separately.
But
both
cases
will
be
consolidated
and
heard
and
decided
together.

17. This procedure would faithfully
implement the legislative intent and also
serve the interest of justice.

18. In the facts and circumstances of
this case, the failure of the learned courts
below to enquire into the validity of the
defence of the petitioner under Section
67(A) of the Code has resulted into a
miscarriage of justice.

19. In the wake of preceding
discussion, the impugned order dated
22.01.2021 and the order dated 20.07.2021
are vitiated and contrary to law.

20. The order dated 22.01.2021
passed by the respondent No.3-Tehsildar
(Judicial)/Assistant Collector 1st Class,
Tehsil-Narwal, District-Kanpur Nagar and
the order dated 20.07.2021 passed by the
learned appellate court/Additional District
Magistrate (Judicial), Kanpur Nagar, are
liable to be set aside and are set aside.

21. The matter is thus remitted to the
respondent
No.3-Tehsildar
(Judicial)/
Assistant Collector 1st Class, TehsilNarwal, District-Kanpur Nagar for a fresh
determination
consistent
with
the
observation made in this judgment.

22. The following directions are being
passed to serve the interest of justice in this
case:

(1) The petitioner shall file a
fresh application under Section 67(A) of
the Code before the respondent No.3Tehsildar (Judicial)/Assistant Collector 1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar within a period of one month from
the date of production of a certified copy of
this order.

(2)
The
respondent
No.3Tehsildar (Judicial)/Assistant Collector 1st
Class,
Tehsil-Narwal,
District-Kanpur
Nagar, shall register the proceedings under
Section 67(A) of the Code upon submission
of such application.

23. The writ petition is allowed to the
extent indicated above.
----------
(2022) 8 ILRA 164
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 20356 of 2022

Hariraj Singh Choudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajendra Prasad Singh, Sri Nirankar
Singh
8 All. Hariraj Singh Choudhary Vs. State of U.P. & Ors.
165
Counsel for the Respondents:
C.S.C., Sri Bal Mukund Singh, Sri Brajendra
Kumar Pandey, Sri Nikhil Kumar, Sri Mohd.
Afzal.

A. Civil Law-UP Cooperative Societies Act,
1965-UP
Cooperative
Societies
Rules
1968-Rules 457, 458, 459, 464 & 465Petitioner elected as Chairman of the
Committee of Management of the District
Cooperative
Bank
Limited-elected
members of the committee presented a
notice for no confidence motion-meeting
was adjourned by the Presiding Officer on
the
first
occasion
for
administrative
reasons and on the second event on
account of being Corona positive-21 days
prior notice to be given for holding a
meeting for purpose of consideration of
proposed no confidence motion against a
cooperative society-Giving of adequate
time as provided in second proviso of Rule
458 is necessary because members of
Cooperative
Society
can
make
due
arrangements
for
attending
meeting.
(Para 1 to 14)
The petition is dismissed. (E-6)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
& Hon'ble Jayant Banerji, J.)

1. Heard Shri Nirankar Singh, learned
counsel for the petitioner, Shri Satyam Singh,
learned Standing Counsel for the respondent
nos. 1, 2, 3, Shri Bal Mukund Singh, learned
counsel for the respondent no. 4 and Shri
Nikhil Kumar, learned counsel for the
respondent no. 4.

2. This writ petition has been filed
praying for the following relief:

"I Issue a writ, order or direction in
the nature of certiorari quashing the
notice/order dated 22/06/22 issued by the
opposite party no 2, in the interest of justice;

II Issue a writ order or direction
in the nature of mandamus commanding
the opposite parties especially the opposite
party nos. 3 and 4 herein not to give effect
to the order dated 20/06/22, issued by the
opposite party no. 2 herein, in the interest
of justice;

III Issue a writ order or direction
in the nature of mandamus commanding
the opposite parties to strictly adhere to the
provisions
as
contained
in
the
UP
Cooperative Societies Act 1965 and the UP
Cooperative Societies Rules 1968, in the
interest of justice

IV Issue any other order or
direction which this Hon'ble Court may
deem fit and proper in the circumstances of
the case, in favour of the petitioner, in the
interest of Justice."

3. Briefly stated facts of the present
case are that the petitioner was elected as
Chairman
of
the
Committee
of
Management of the District Cooperative
Bank Limited, Ghaziabad in the election
held on 10th-11th May, 2018. There are
total 12 members of the Committee of
Management. Learned counsel for the
petitioner has stated that these 12 members
have elected the petitioner as Chairman in
the election held on 11th May, 2018. The
respondent nos. 5 to 11 are elected
members
of
the
Committee
of
Management, who presented a notice for no
confident motion in terms of Rule 455, 456
and 457 of the Uttar Pradesh Co-operative
Societies Rules, 1968 (hereinafter referred
to as the 'Rules, 1968') on 17.6.2022.
Pursuant to the aforesaid notice for no
confidence motion, the respondent no. 2
fixed the date, time and place of meeting
and nominated the Additional District
Magistrate (City), Ghaziabad as Presiding
Officer for the meeting. However, on the
date fixed i.e. 20.7.2022 the meeting could
166 INDIAN LAW REPORTS ALLAHABAD SERIES
not be held by the Presiding Officer for
administrative reasons as reflected in his
order dated 19.7.2022 adjourning the
meeting for 3.8.2022.

4. Today, Shri Nimai Das, learned
Additional Chief Standing Counsel and
Shri Satyam Singh, learned Standing
Counsel representing the State-respondents
have stated on instructions that today's
meeting of no confidence motion cannot be
held since the Presiding Officer has tested
Corona positive and is in quarantine. They
further
informed
that
under
the
circumstances, a notice in terms of sub-rule
(1) and sub-rule(2) of Rule 458 of the
Rules, 1968 shall be issued by the District
Magistrate, Ghaziabad within three days
and on the date fixed the meeting shall be
held.

Submissions

5. Learned counsel for the petitioner
submits as under:

(i) Under Rule 457 of the Uttar
Pradesh Co-operative Societies Rules,
1968, notice of no-confidence motion
shall personally be presented by at least
three members to the specified authority
i.e. District Magistrate, whereas in the
present case, the notice for no-confidence
motion was not presented personally
before
the
District
Magistrate
i.e.
respondent no.2. Since the notice for noconfidence motion itself is defective,
therefore, the impugned notice for noconfidence motion dated 22.6.2022 is
invalid.

(ii) In the impugned notice of noconfidence motion dated 22.6.2022, there is
no compliance of sub-Rule (2) of Rule 458
and, therefore, the notice is defective.

(iii) Since, 35 days period for
meeting as provided in the first proviso to
sub-rule (1) of Rule 458 has expired,
therefore, the meeting for no confidence
cannot be held by the respondent no. 2
i.e. District Magistrate.

6. Learned Standing Counsel and
learned Counsel for the respondent no. 4
and 7 support the impugned order.

Reasons and Findings

7. We have carefully considered the
submission of the learned counsel for the
parties.

8. The facts as aforementioned have
not been disputed by the learned counsel
for the petitioner and the learned counsel
for the aforenoted respondents. We have
confronted
learned
counsel
for
the
petitioner with paragraph 15 of the
counter affidavit with respect to the
submissions as recorded in sub-rule (1).
After perusal of paragraph 15 of the
personal
counter
affidavit
of
the
respondent no. 2 dated 28.7.2022, learned
counsel for the petitioner has stated that
the facts stated in paragraph 15 of the
aforesaid personal affidavit with regard to
the presentation of no confidence motion
by the members mentioned therein, is not
disputed.

9. In the aforesaid paragraph 15 of the
personal affidavit, the respondent no. 2 has
stated as under:

"15.
That
the
contents
of
paragraph no.21 of the writ petition are
incorrect as stated hence denied. It is
further stated that on 17-06-2022 Sri
Govind Tyagi, Sri Rajiv Lochan Sharma,
8 All. Hariraj Singh Choudhary Vs. State of U.P. & Ors.
167
Sri Kunwar Pal, Sri Rajiv Kumar, Smt.
Chetna Yadav, Km. Chhavi Yadav and
Sri Sitaram (Members of Committee of
Management District Cooperative Bank
Ltd. Ghaziabad) were personally present
before respondent no.2, i.e. District
Magistrate Ghaziabad and submitted
their application 17-06-2022 for no
confidence motion against Hariraj Singh
(Petitioner)
(Chairman
District
Cooperative Bank Ltd. Ghazaiabad) and
also submitted their affidavit which were
7 in number out of 12 members of
committee of Management Ghaziabad
District Cooperative Bank Ghaziabad
and as such their application accepted in
accordance with the provisions of Rule
456 and 457 of U.P. Cooperative Societies
Rules 1968. It is further stated that the
District
Magistrate
Ghaziabad
nominated
the
Additional
District
Magistrate Nagar (Ghaziabad) as a
Presiding officer of the meeting in which
the resolution for no confidence shall be
considered as provided under Rule
459(1) of U.P. Cooperative Societies
Rules 1968 by the impugned order dated
22-06-2022. The Photocopy of order
dated 22-06-2022 is being filed herewith
and marked as Annexure no.2 to this
affidavit. From perusal of order dated
22-06-2022, it is clear that the District
Magistrate
(specified
authority)
nominated
the
Additional
District
Magistrate
(City
Ghaziabad)
as
a
Presiding Officer of the meeting in which
the resolution for no confidence shall be
considered as provided in Rules 459(1) of
Rules 1968. It is further stated that the
Additional
District
Magistrate
(City
Ghaziabad)/Presiding
Officer
issued
notices to the entire members of Committee
of Management of District Cooperative
Bank Ltd. Ghaziabad through Secretary
dated 25-06-2022, 19-07-2022, 22-07-2022
and 23-07-2022 for consideration of the
proposal of no confidence motion, in
accordance with the Rules 456, 457, 458
and 459 of U.P. Cooperative Societies
Rules 1968. The photocopy of letter dated
25-06-2022, 19-07-2022, 22-07-2022 and
23-07-2022 are being filed herewith and
marked as Annexure no.3 to this affidavit.
And as such there is no illegality or
irregularity in the impugned order and the
writ petition filed by the petitioner is based
upon misrepresentation of facts, the same is
liable to be dismissed."

10. In view of the undisputed position
as stated in the aforenoted highlighted
portion of paragraph 15 of the personal
affidavit of the respondent no. 2 dated
27/28.8.2022, the first submission deserves
to be rejected and we hold that the notice
for no confidence motion has been
presented by the respondent nos. 5 to 11 in
accordance with rules. To consider the
aforenoted submissions (ii) and (iii) of the
learned counsel for the petitioner, it would
be appropriate to first refer to provisions of
Rule 458, 459, 464 and 465 of the Rules,
1968, as under:

"458. (1) On receipt of the notice
of no confidence as provided in Rules 456
and 457, the specified authority shall fix
such-time, date and place as, he may
consider suitable for holding a meeting for
the purpose of consideration of the
proposed no confidence motion:

Provided that such meeting shall
be held within thirty-five days of the
receipt of the notice of no confidence:

Provided further that at least
twenty-one day's notice shall be given for
holding such meeting.]

(2) The notice for meeting under
sub-rule (1), shall also provide that in the
event of the no confidence motion being
168 INDIAN LAW REPORTS ALLAHABAD SERIES
duly carried, election of the new Chairman
or Vice-Chairman, as the case may be, shall
also be held in the same meeting.

459. (1) The specified authority
shall
also
nominate
any
Gazetted
Government servant (other than an Officer of
Department which is concerned with the
supervision and administration of the Society
concerned) to act as a Presiding Officer of the
meeting in which the resolution for no
confidence shall be considered.

(2) The quorum for such a meeting
of the Committee of Management shall be
'[more than] half of the total number of
members of the Committee.

464.
If
the
motion
for
no
confidence fails for want of quorum or lack
of requisite majority at the meeting, no
subsequent meeting for considering the
motion of no confidence shall be held within
six months of the date of the previous
meeting.

465.
The
specified
authority
referred to in the rules of this part shall be
District Magistrate of the district where the
headquarters of the society is situated."

11. In the present writ petition only the
order dated 22.6.2022 has been prayed to be
quashed. We have perused the order dated
22.6.2022 issued by the respondent no. 2 i.e.
District Magistrate, Ghaziabad and we find
that it is an order fixing date, time and place
of the meeting for no confidence in terms of
Rule 458(1) of the Rules and nomination of a
Gazetted Officer as Presiding Officer in terms
of Rule 459(1). and 465 of the Rules, 1968.
Thereafter, notice was required to be issued,
which has been issued to the members by the
Presiding Officer and not by the respondent
no. 2.

12.

Therefore,
under
the
circumstance, neither the notice of no
confidence nor the impugned order under
Rule 458(1) of the Rules, 1968 can be said
to suffer from any legal infirmity.

13. The first proviso to sub-rule (1) of
Rule 458 provides that meeting shall be
held within 35 days from the receipt of the
notice of no confidence motion and there
must at at least 21 days notice. The first
proviso providing the meeting to be held
within 35 days, in our considered view, was
enacted with the object of holding the
meeting for the purpose of consideration of
the
proposed
no
confidence
motion
expeditiously. However, where the notice
for no confidence motion as moved by the
members for convening the meeting does
not suffer from any infirmity then any lapse
on the part of the authority in convening
the meeting to consider no confidence
motion, cannot render the notice for no
confidence infructuous. If the first proviso
to sub-rule (1) of Rule 458 is interpreted
strictly, in the manner as suggested by the
learned counsel for the petitioner, the result
would be that notice of no confidence
motion moved by the members, without
being tested at the floor of the house, can
be
easily
defeated
by
collusion,
negligence/lapses.
Thus,
such
strict
interpretation would be against the basic
principles of democracy and would affect
the survival of democratic institutions.
Therefore, the first proviso to sub-rule (1)
of Rule 458, in our considered view, is
directory, and it means that normally the
meeting shall be held within 35 days of the
receipt of notice of no confidence. But in
extenuating circumstances, this limitation
of 35 days would be viewed as directory. In
the present set of facts, as already noticed
above, the meeting has been adjourned, not
because of any circumstances created or
because of any fault on the part of the
members who moved the notice for no
confidence motion, instead the meeting was
8 All. Drs Wood Products Vs. State of U.P. & Ors.
169
adjourned by the Presiding Officer on the
first occasion for administrative reasons
and on the second event, i.e. today, on
account of his being tested Corona positive
and therefore, it is not possible for the
Presiding Officer to hold the meeting.

However, considering the second
proviso to sub-rule (1) of Rule 458 that
provides for at least 21 days notice to be
given for holding a meeting for the purpose
of consideration of the proposed no
confidence motion, it stands to reason that
adequate time ought to be afforded to the
members of Cooperative Bank to attend that
meeting. Giving of adequate time as provided
in the second proviso aforesaid is necessary
because the members of the Cooperative
Society/Bank can make due arrangements for
attending the meeting. Therefore, the second
proviso
aforesaid
is
required
to
be
compulsorily followed.

14. For all the reasons aforestated, we
do not find any merit in this writ petition, the
writ petition is dismissed with the following
directions:

(i) The respondent no. 2 shall
himself give at least 21 days clear notice of
the meeting to all the members within a week
from today. The notice shall strictly comply
with the provisions of sub-rule (1) and subrule (2) of Rule 458 of the Rules, 1968.

(ii) On the date fixed, the meeting
shall be certainly held either by the
respondent no. 2 i.e. District Magistrate or by
his nominee nominated under Rule 459 of the
Rules, 1968.

15. Learned Additional Chief Standing
counsel shall inform this order in writing to the
respondent no. 2 i.e. District Magistrate,
Ghaziabad within 48 hours for strict compliance.
----------
(2022) 8 ILRA 169
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.08.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 21692 of 2021

Drs Wood Products ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Singh, Suyash Agarwal

Counsel for the Respondents:
C.S.C., Digvijay Nath Dubey

A. Civil Law-U.P. Goods and Service Tax
Act, 2017-Sections 29 & 30 -Central Goods
and Service Tax Act 2017-Section 29 &
Central Goods and Services Tax Rules,
2017-Rule 22(1) - Cancellation of GST
registration-validity-
Registration
cancelled on a vague show cause notice
without
any
allegation
or
proposed
evidence against the petitioner-Principles
of
administrative
justice
violatedCancellation of registration erroneous as
the allegations were only to the ground
that tax payer found non-functioning at
the principal place of business-the order
rejecting the application for revocation of
cancellation takes the matter to the height
of arbitrariness as no reasons recordedThe authorities failed to act in the light of
the spirit of the GST Act as it discloses
absence of application of mind-the orders
cannot be sustained as they are contrary
to the mandate of Section 29 and 30 of
the Act as well as the principles of
adjudication
by
the
quasi-judicial
authorities. (Para 1 to 25)

The writ petition is allowed. (E-6)

List of Cases cited: