# Smt. Vandana Varma & Ors v. The State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 1029
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-29
- **Case number:** Civil Misc. Writ Petition No. 45314 of 2014
- **Bench:** Amreshwar Pratap Sahi, Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vandana-varma-ors-v-the-state-of-u-p-ors-42932
- **Pages:** 6

## Headnote

U.P. Cooperative Societies Act 1965-Section
38 read with U.P. Cooperative Societies
Rules 1968-Rule 115- Dismissal on basis of
decision

of
management
-charge
mentioned in agenda related to Rule 115can
not
be
passed
without
holding
disciplinary proceeding-under rule 38-held
proceeding without jurisdiction-quashed.

Held: Para-24
Since learned counsel for the parties have
agreed for final disposal of the writ petition
at this stage itself, the writ petition is
allowed, the resolution dated 21.8.2014
and
the
consequential
communication
dated
22.8.2014
disqualifying
the
petitioners are hereby quashed leaving it
open to the respective authorities to take
any action in case so warranted in law in
accordance with the rules and procedure as
observed hereinabove.

Case Law discussed:
1980 A.L. J. page 1098; 1992 (10) Lucknow
Civil Decisions page 263; 2003 (2) U.P.L.B.E.C
Page 1132; 1978 (4) A.L.R. Page 949; W.P.
No. 5131 of 2013 decided on 31.01.2013;
1998(8) SCC Page 1.

## Text

2 All]. Smt. Vandana Varma & Ors. Vs. The State of U.P. & Ors.
1029
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.08.2014

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE VIVEK KUMAR BIRLA, J.

Civil Misc. Writ Petition No. 45314 of 2014

Smt. Vandana Varma & Ors. ...Petitioners
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Rohit Agarwal, Sri Shashi Nandan

Counsel for the Respondents:
C.S.C., Sri Dhirendra Singh, Sri Nikhil Kumar

U.P. Cooperative Societies Act 1965-Section
38 read with U.P. Cooperative Societies
Rules 1968-Rule 115- Dismissal on basis of
decision

of
management
-charge
mentioned in agenda related to Rule 115can
not
be
passed
without
holding
disciplinary proceeding-under rule 38-held
proceeding without jurisdiction-quashed.

Held: Para-24
Since learned counsel for the parties have
agreed for final disposal of the writ petition
at this stage itself, the writ petition is
allowed, the resolution dated 21.8.2014
and
the
consequential
communication
dated
22.8.2014
disqualifying
the
petitioners are hereby quashed leaving it
open to the respective authorities to take
any action in case so warranted in law in
accordance with the rules and procedure as
observed hereinabove.

Case Law discussed:
1980 A.L. J. page 1098; 1992 (10) Lucknow
Civil Decisions page 263; 2003 (2) U.P.L.B.E.C
Page 1132; 1978 (4) A.L.R. Page 949; W.P.
No. 5131 of 2013 decided on 31.01.2013;
1998(8) SCC Page 1.

(Delivered by Hon'ble Amreshwar Pratap
Sahi, J.)

1. Heard Sri Shashi Nandan learned
Senior Counsel assisted by Sri Rohit
Agarwal
learned
counsel
for
the
petitioners, Sri Nikhil Kumar for the
respondent nos. 5 and 6, Sri Dhirendra
Singh for the respondent no. 7 through its
alleged Director Sri Ashok and the
learned
Standing
Counsel
for
the
respondent nos. 1 to 4.

2. Learned counsel for the parties
have agreed that the writ petition be
disposed of finally at this stage itself as
the respondents do not propose to file any
counter affidavits at this stage keeping in
view the nature of the order that is
proposed to be passed.

3. The contention raised by Sri Shashi
Nandan, while questioning the impugned
action of removal of the petitioners, who are
office bearers of the Society and fall within
the definition of "Officer", under the
impugned orders dated 13.8.2014 and
21.8.2014, is to the effect that the exercise of
powers under which such removal has been
made does not fall within the jurisdiction of
the Committee of Management of the
Society, inasmuch as, the removal of the
office bearers can only be done by
proceeding to take action under Section 38 of
the U.P. Cooperative Societies Act, 1965 and
the rules framed thereunder. He submits that
the action in the present case has been
purportedly taken by invoking Rule 115 read
with Rule 453 and Rule 454 of the U.P.
Cooperative Societies Rules, 1968 which is a
malicious exercise of power that is colorable
and unlawfully executed.

4. The contention is that none of the
disqualifications have been incurred by
the petitioners as envisaged under Rule
453 and therefore Rule 454 cannot be
invoked by the respondent no. 7 for the
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
removal of the petitioners in exercise of
such powers. It is a colorable exercise of
power and without any material to
substantiate the same. He further submits
that the procedure also prescribed for the
same has not been followed inasmuch as
if the action was sought to be taken for
charges relatable to Rule 115 then in that
event Section 38 is clearly attracted and a
notice to that effect ought to have been
given by the Society before proceeding to
exercise any such powers.

5. Learned counsel submits that an
agenda notice for a meeting of the
committee is not a notice for the purpose
of such exercise of powers under Rule
115, hence the impugned order suffers
from manifest illegalities.

6. Sri Shashi Nandan further
contends that in view of the law laid down
by the two Division Benches of this Court
in the case of Madan Pal Singh and
another Vs. The Additional District
Magistrate, Meerut and others 1980
A.L.J. Page. 1098 and the law laid down
in the case of Kamil Kidwai Vs. Stae of
U.P. 1992 (10) Lucknow Civil Decisions
page 263, it is evident that the exercise of
powers to indict under Rule 115 has to be
processed only in terms of Section 38 and
not under Rule 454.

7. The contention therefore is that
the impugned orders under the garb of
exercise of such powers under Rule 454
are without jurisdiction and in violation of
the procedure prescribed under the Rules.

8. Sri Nikhil Kumar and Sri Singh as
well as the learned Standing Counsel for
the
respondents
have
opposed
the
aforesaid arguments contending that the
petitioner has an alternative remedy of
invoking arbitration as provided for in
Rule 454 itself, and even otherwise such
disputes can be resolved by the Registrar
in exercise of the omnibus power
conferred on him under Section 128 of the
U.P. Cooperative Societies Act, 1965.

9. On merits, they contend that the
procedure even if presumed to be in
relation to Section 38, then too the
permission and the communication from
the Registrar on record does indicate that
the Committee of Management has
proceeded only after such permission has
been granted and therefore the orders
impugned cannot be said to be without
jurisdiction. They therefore contend that
the alternative remedy as indicated above
could be invoked by the petitioners for
resolution of such disputes. They further
contend that so far as the charges are
concerned as enumerated in the agenda
notice dated 13.8.2014, the same clearly
indicate the disqualifications that are
relatable to Rule 453 incurred by the
petitioners, and in such circumstances this
court would be loathe to interfere with the
orders.

10. They further urge that even in
relation to the charges of Rule 115 no
reply was given by the petitioners who
had received the notices and instead of
giving a reply, they were simply seeking
time and vague informations, basically
challenging
the
authority
of
the
Committee of Management to proceed to
take action. They also contend that once
an opportunity had been given to the
petitioners they cannot raise any dispute
of violation of principles of natural
justice.

11. Learned counsel for the
respondent has further relied on the
2 All]. Smt. Vandana Varma & Ors. Vs. The State of U.P. & Ors.
1031
decision in the case of Dilbag Singh Vs.
Deputy Registrar, Cooperative 2003 (2)
U.P.L.B.E.C. Page 1132, to urge that the
alternative remedy rule should be adhered
to. They have also relied on another
Division Bench judgment in the case of
Uma Nath Mishra Vs. State of U.P. and
others 1978 (4) A.L.R. Page 949 to
contend that when the provision for
arbitration is available, then the discretion
under Article 226 of the Constitution of
India should not be invoked. This view,
according to the respondent, has been
consistently followed by this Court
including the division bench judgment in
the case of Ram Chandra Jaiswal Vs.
State of U.P. Writ Petition No. 5131 of
2013 decided on 30.1.2013.

12. Having considered the aforesaid
submissions, taking up the issue of
alternative remedy first, there is no
quarrel that Rule 454, in the event of any
dispute of disqualification, requires the
party aggrieved to invoke the arbitration
clause. There is also no dispute that the
Registrar has powers under Section 128 to
annul any resolution passed by the
Society or the Committee of Management
in exercise of such powers.

13. However, coming to the
decisions that have been relied on by Sri
Nikhil Kumar particularly in the case of
Dilbag Singh (Supra) we find that the
Division Bench proceeded to observe that
alternative remedy is not an absolute bar
and if the allegations of violation of
principles of natural justice and the order
being without jurisdiction are made then
this Court may take into consideration
such factors.

14. The aforesaid proposition has
been canvassed before this Court as well
as before the Apex Court time and again
and the most celebrated judgment cited at
the bar is that in the case of M/s
Whirlpool Corporation Vs. Registrar
Trade Mark 1998 (8) SCC page 1. To our
mind the exceptions entailed therein are
attracted on the facts of the present case.

15. The issue therefore is as to
whether the exercise of powers by the
respondent no. 7 suffers from the vice of
jurisdiction or not.

16. We have considered the
arguments at length and the impugned
action appears to have been taken on two
premises, firstly that which is based on
the allegations as per Rule 115 of the U.P.
Cooperative Societies Rules, 1968. The
second on incurring disqualifications
under Rule 453 (1) (f), (g), (h) and (q) of
the 1968 Rules.

17. For illustration sake the charges
against the petitioner no. 1 mentioned in
the agenda notice are to the effect that she
has acquired her membership in violation
of the provisions, she has committed
irregularities in ex-cadre selections, she
has forcibly occupied the residence of the
Secretary of the Bank and that she had
misutilized an Innova vehicle of the
society. Except the first charge relating to
membership, the other three charges
clearly indicate that they are in relation to
Rule 115 which could not be disputed by
Sri Nikhil Kumar and Sri Singh. The
procedure provided for taking action
under Rule 115 is clearly relatable to
Section 38 of the 1965 Act and we have
not been able to find any good reason to
differ from the view taken by the Division
Bench in the cases of Madan Pal Singh
and Kamil Kidwai (Supra). A perusal of
paragraph 7 of the decision in the case of
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Madan Pal Singh would indicate that the
same lays down clearly that if the alleged
charge is a violation of Rule 115 then the
office bearers can be removed only in
accordance with Section 38 of the Act.

18. The aforesaid conclusion drawn
by the Division Bench, in our opinion, is
perfectly in accordance with law and in
the absence of any ground to differ from
the same we are bound by the said ratio.

19. Paragraph 7 is extracted
hereinunder:-

"7. In our opinion respondents 2 to
12 had no jurisdiction acting as members
of the Committee of Management to
remove
petitioner
No.
1
from
its
membership on the ground that he had
violated Rule 115. He was an 'Officer' of
the Society within the meaning of Section
2 (o) of the Act. Assuming he had violated
Rule 115 he could be removed from his
office only in accordance with Section 38
of the Act. The Committee of Management
could take action against petitioner No. 1
under Rule 454 only if it found that he
had incurred one of the disqualifications
mentioned in Rule 453, sub-Rule (1). The
impugned resolution contains no such
finding. The Committee consequently
acted beyond its statutory limitations."

20. To the same effect, we find that
the ratio of the decision in the case of
Kamil
Kidwai
(Supra)
wherein
paragraphs 9 and 10 the law has been
categorically stated which is as follows
and is extracted hereinuder:-

"9. From a perusal of Section 38 (1)
which has been reproduced above it will
appear that Section 38 (1) relates to the
removal of an office of a co-operative
society and applies to a case where any
officer of a co-operative society has
contravened or omitted to comply with
any provisions of the Act or the rules or
the bye-laws of the society or has forfeited
his right to hold office. When it is
proposed to take action against an officer
of a co-operative society for his removal
on the ground that he has forfeited his
right to hold office, the provisions of
Section 38(1) which deal directly with the
matter are attracted. The grounds on
which an officer of a co-operative society
may forfeit his right to hold office are not
specified and, therefore, the provisions
being of a general nature would also
apply where the right has been forfeited
on account of disqualifications, referred
to in rule 453, incurred by an officer
making him ineligible to be or to continue
as a Member of the Committee of
Management.

10. Rule 454 which is a piece of
delegated legislation under Section 130 of
the Act defines the procedure to be
followed by a Committee of Management
regarding the removal of a member
subject to disqualification from the
Committee of Management. It is a
supplemental provision and has to be
read alongwith the provisions of Section
38 (1) and not independent of it. There is
no conflict or inconsistency between the
two provisions. It is no doubt true that in
Section 38(1) provision is that the
Registrar may call upon the society to
remove within a specified period the
officer concerned and in rule 454 it is
provided that it shall be the duty of the
Committee of Management of a cooperative society to ensure that no person
incurring any of the disqualifications
continues to hold office of the Member of
Committee of Management. At first sight
the use of the word "may" in Section 38(1)
2 All]. Smt. Vandana Varma & Ors. Vs. The State of U.P. & Ors.
1033
may suggest that the Registrar has
discretion in the matter of taking action
and this may be in conflict with the duty
of
the
Committee
of
Management
mentioned in rule 454. But there is no
conflict in reality, for the context in which
the power has been conferred on the
Registrar
by
Section
38(1)
would
envisage
that
the
provisions
are
mandatory and it is the duty of the
Registrar to take action where in his
opinion the conditions laid down in the
section exist. The failure of the Registrar
to take action will amount to permitting
the officer of the co-operative society to
continue to hold office inspite of the fact
that he is guilty of having contravened or
to hold office or omitted to comply with
the provisions of the Act, rules or byelaws or he has forfeited his right to hold
office. No statutory authority will ever
countenance such a situation and will not
permit an office-holder to be continued
even after infraction of law caused by his
own act or omission. In accordance with
the
dictum
of
their
Lordships
in
Pundalik's
case
cited
above,
the
provisions of Section 38(1) and rule 454
should be and they are capable of being
interpreted harmoniously. Whenever it
occurs to the Committee of Management
that an officer of the Society has become
subject to any disqualification and is
eneligible to hold office, the Committee
will approach the Registrar, obtain his
sanction under S. 38(1) and proceed to
take action for the removal of the officer
in accordance with rule 454. This
procedure may be considered necessary
for the protection of the officer as well as
for the smooth management of the affairs
of the society. If the Registrar omits to
perform the statutory duty imposed on
him under Section 38(1) or exercise his
powers under that section contrary to the
settled principles of law, his action or
inaction will always be subject to judicial
review
and
appropriate
orders
or
directions may be issued to him under
Article 226 of the Constitution, and this
aspect of the matter has not been
challenged by the counsel for the
respondent."

21. In this situation and on the facts
of the present case we find that Rule 115
has been clearly invoked and the charges
are
relatable
to
the
said
rule.
Consequently, the only conclusion that
can be drawn on the facts of the present
case, applying the law aforesaid, is that
Section 38 ought to have been invoked
whereafter
the
Society
could
have
proceeded to take action after putting the
petitioners to notice on such specific
charges that would be in relation to Rule
115
by
following
the
procedure
prescribed and not by a circumvented
method. The agenda for a meeting of the
Committee to take action under Rule 454
cannot amount to a notice as envisaged
under Section 38 read with Rule 115, and
therefore the entire proceedings on
allegations grounded on Rule 115 are
clearly without jurisdiction as they do not
comply with the procedure prescribed.
This method of removal in the present
case is malice in law.

22. So far as the second issue
relating to the membership and its
disqualification as prescribed under Rule
453 is concerned, we find that this action
has been mixed up with the allegations in
relation to Rule 115 whereas the powers
exercisable in both events are through
different methods and through different
procedures prescribed in law as indicated
in Section 38 and Rule 454. The power to
disqualify a member is clearly provided in
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
Rule 454 where it is an obligation on the
Committee of Management to take action
only when the conditions as explained in
the
above
mentioned
decisions
are
fulfilled.

23. The respondents appear to have
proceeded without taking into account the
aforesaid distinction between the manner
and the procedure that is prescribed for
exercise of such powers. The impugned
action therefore cannot stand the scrutiny
of law and if it is without adhering to the
procedure prescribed then there is no
occasion for this Court to relegate the
petitioners to the alternative remedy for
seeking arbitration or even otherwise
before the Registrar. The exceptions as
enumerated in the ratio of M/s Whirlpool
(Supra) and even otherwise the facts of
this case, do not bar the entertaining of
this petition. The impugned action as
concluded above, suffers from malice in
law and is therefore liable to be struck
down on the facts noted above.

24. Since learned counsel for the
parties have agreed for final disposal of
the writ petition at this stage itself, the
writ petition is allowed, the resolution
dated 21.8.2014 and the consequential
communication
dated
22.8.2014
disqualifying the petitioners are hereby
quashed leaving it open to the respective
authorities to take any action in case so
warranted in law in accordance with the
rules
and
procedure
as
observed
hereinabove.

25. The writ petition is accordingly
allowed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2014
BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 64325 of 2008

Mohammad Afzal ...Petitioner
Versus
Smt. Ramesh Kumari ...Respondent

Counsel for the Petitioner:
Sri Satish Mandhyan, Sri B.D. Mandhyan
Sri Om Prakash

Counsel for the Respondent:
Sri R.K. Pandey, Sri R.P. Pandey

Transfer of Property Act, Section 106Notice-determination of tenancy-15 days
provided-sent itself filed before expiry of
30 days-decreed by Court below-helderroneous approach-in U.P. 30 days
notice-mandatory-prior
to
that
suit
itself-not maintainable.

Held: Para-14
Therefore, the notice dated 4.3.2005
which forms the basis of the suit is
invalid and the tenancy of the petitioner
can not be treated to have been validly
determined and since the suit has also
been instituted before the expiry of the
statutory period of notice, it is defective.
Thus, the Courts below erred in law in
decreeing the suit.

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Om Prakash, learned
counsel for the petitioner and Sri R.K.
Pandey,
learned
counsel
for
the
respondent.

2. Petitioner is a tenant. His tenancy
is said to have been terminated vide
notice dated 4.3.2005 under Section 106
of the Transfer of Property Act, 1882 (in
short TP Act) whereupon the respondent
landlord instituted SCC Suit No. 8 of
2005 for his eviction. The suit has been