HANSRAJ Vs. RAJAS THAN STATE CO OPERATIVE TRIBUNAL JAIPUR

JUDGEMENT

(1.) THIS application under Art. 226 of the Constitution filed by Hans Raj challenging the election of two members to the Board of Directors of Sawai Madhopur Kendriya Sahkari Bank Ltd. (hereinafter referred as 'the Bank') raises an important question about the interpretation of the provisions of secs. 125 & 128 of the Rajasthan Co-operative Societies Act, 1965 (hereinafter referred to as 'the Act'.

(2.) THE facts giving rise to this dispute are as follows: On 18th January, 1968, the 1lth Annual Meeting of the Bank was called to fill the two vacancies in the Board of Directors of the Bank through election. THE petitioner along with Respondents Nos. 5 & 6 Shanker & Kanwerlal was a candidate at that election. His allegation is that the Returning Officer was bent upon to help the Respondents Nos. 5 and 6 and therefore be acted with a malafide intention to reject nomination papers of all other candidates except that of Respondents Nos. 5 & 6 and thus declared Respondents Nos. 5 and 6 duly elected as members of the Board. THE petitioner challenged the validity of the elections of the Respondents Nos. 5 and 6 by referring the dispute to the Deputy Registrar, Co-operative Societies, Ajmer under sec. 75 of the Act. An application was also moved by the petitioner for the issue of an ad interim order directing Respondents Nos. 5 and 6 not to participate in the election of the Chairman of the Bank and also not to function as members of the Board of Directors. THE Deputy Registrar issued ad interim order as prayed by the petitioner on 30th January, 1968 directing Respondents Nos. 5 and 6 not to function as the members of the Board of Directors and not to take part in the election of the Chairman of the Bank. Having felt aggrieved by the said interim order of the Deputy Registrar, the Bank and the other three Respondents Nos. 4, 5 and 6 filed a revision petition before the Registrar, Co-operative Societies, Rajasthan, Jaipur under sec. 126 of the Act. This petition was registered by the Registrar as Revision Petition No. 5 of 1968. THE Registrar passed ex parte ad interim under on 28th February 1968 at the request of the respondents (who were petitioners before him) to suspend the operation of the order of the Deputy Registrar dated 30th January 1968, and fixed 16th of March, l968 for the hearing of the opposite parties on the question of confirming the ex parte ad interim stay order. As a consequence of this ex parte interim order Respondents Nos. 5 and 6 were administered oath of office of the Directors of the Bank on 28th February, 1968, and they participated in the election of the Chairman of Bank. . THE petitioner went to the Tribunal under sec. 125 of the Act to challenge the validity of the interim order passed by the Registrar on the 28th of February, 1968. THE Tribunal dismissed the revision application of the petitioner on the ground that it had no jurisdiction to entertain any revision application under sec. 125 of the Act against the order passed by the Registrar in exercise of his jurisdiction under sec, 128 of the Act. THE petitioner, by this Writ petition, has now challenged both the orders of the Registrar dated the 28th of February, 1968, and the order of the Tribunal rejecting his revision application.

(3.) IT was then contended by Mr. Bajrang Lal that since the matter was not taken up before the Tribunal under sec. 125 of the Act the Registrar had the jurisdiction to exercise his power of superintendence under sec. 128 of the Act. He argued that the words "except those referred to in sec. 125", occurring in sec. 128, clearly mean that the State Government or the Registrar can exercise the power of revision under sec. 128 and call for the record of the subordinate officer in every case unless such an order has been called under sec. 125 of the Act by the Tribunal for revising the same, In support of this interpretation of sec. 128 of the Act reliance has been placed on the decision of the Supreme Court in Everest Apartments Co-operative Housing Society Ltd. Bombay vs. State of Maharashtra (3) wherein their Lordships while considering the provisions of sec. 154 of the Maharashtra Act (which is an analogous provision of sec. 128 of the Act) observed - "there is no doubt that sec. 154 is potential but not compulsive. Power is reposed in Government to intervene to do justice when occasion demands it and of the occasion for its exercise, Government is made the sole judge. This power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under sec. 149 (9) of the Act. The exception was considered necessary because the legality or the propriety of an order housing considered, it would be an act of supererogation to consider the matter twice. " (Underlining in mine ). IT is contended that the only exception which sec. 128 knows to fetter the revisional jurisdiction of the Registrar is that the Registrar shall not revise such orders of the subordinate officer which have already been revised by the Tribunal under sec. 125 of the Act. According to Mr. Bajranglal if the revision has not been taken to the Tribunal then order in all cases whether falling within the ambit of sec. 76 (a), or (b) or (c) is revisable under sec. 128 of the Act. Mr. Garg, on the other hand, contended that the real question before the supreme Court was not to determine the scope of sec. 149 (9) of the Maharashtra Act which is analogous to sec. 125 of the Act but the question was whether the Government was the sole Judge to revise the orders in that case or not, and in that connection, their Lordships considered the scope of sec. 154 of the Maharashtra Act, but while doing so, their Lordships in passing observed, - "this power can be exercised in all cases except in a case in which a similar power has already been exercised by the Tribunal under sec. 149 (9) of the Act. " In all humility. Mr. Garg urged that these observations of the Supreme Court are obiter dicta and do not lay down a law that orders in all matters are revisable by the Government or the Registrar which have not been taken to the Tribunal under sec. 149 (9) of that Act.