Hon'ble SHARMA, J. - (1.) - This writ petition has been filed by the petitioners praying that the impugned order dated 4.9.2008 (Annexure-1) passed by the Cooperative Minister, Government of Rajasthan may kindly be quashed and set aside.
(2.) BRIEF facts of the case are under: The petitioners filed a complaint before the Registrar interalia alleging that they are holding plot Nos.3 and 4 in Shri Ram Colony -B, Tonk Road Jaipur which were allotted by Jawaharpuri Bhawan Nirman Sahakari Samiti (in short cooperative Society) in the year 1982-1983. It was stated in the complaint that they constructed room and boundary wall but now it is learnt that certain persons have presented forged allotment/pattas before the Liquidator of the society and on the basis of these forged documents, the Liquidator has issued revised allotment letters for these plots. It was prayed that after making enquiry into the matter, the forged/revised allotment letters may kindly be cancelled. The complaint reads as under: JUDGEMENT_763_RAJLW1_2011Image1.jpg The Registrar examined the matter and issued directions to the Joint Registrar Cooperative Societies vide order dated 13.4.2007 under Section 55 of the Rajasthan Cooperative Societies Act, 2001 (in short the Act of 2001) on the following issues as there were number of other complaints also: (i) Whether the Liquidator has got any authority under Section 64 of the Act to issue revised allotment letters? (ii) Whether the liquidator has followed prescribed procedure in issuing the revised allotment letters? (iii) How many revised allotment letters have been issued by the Liquidator? The petitioners got a public notice published in Rajasthan Patrika dated 6.5.2007 informing the public that enquiry in respect of the plots is being made by the Joint Registrar, therefore nobody should enter into any transaction in respect of these rules plots with Shri Abdul Rehman Qureshi. After issuing notice to the respondent No. 5, petitioners and other concerned persons, the Joint Registrar Cooperative Societies made thorough enquiry in the matter of allotment of various plots, issue of revised allotment lettters/ pattas by the Liquidator and related issues as per order of the Registrar and submitted his report running into 35 pages. The report was examined by the Registrar and ultimately by order dated 6.9.2007, he issued directions interalia for cancellation of revised pattas of plot numbers 1, 3, 4, 5 and 138 and issued various other directions. In pursuance of the order of the Registrar dated 1/6.9.2007 the Deputy Registrar on 7.2.2008 cancelled the revised pattas issued in respect of plots Nos.1, 3, 4, 5 and 138 on the basis of transfers made on the basis of forged documents and also cancelled the duplicate allotment letters issued in respect of plot Nos.71, 91, 142, 165, 206, 181, 127, 159, 100 and 204. The respondent No. 5 filed revision petition before the Cooperative Minister, Government of Rajasthan against order dated 1/6.9.2007 of the Registrar. The petitioners stated in the writ petition that though the Registrar issued directions on the complaint filed by the petitioners but the petitioners were not impleaded as parties in the revision petition. When the petitioners came to know about the filing of the revision petition before the Cooperative Minister they submitted application for impleading them as parties and for affording opportunity of hearing. The order of the Registrar was set aside by the Cooperative Minister by the impugned order dated 4.9.2008 and in the same order the application for impleadment was also rejected. No separate order was passed before passing the impugned order. The petitioners given out in the petition that the final order dated 7.2.2008 was not challenged before the Cooperative Minister. It is submitted by the petitioners in the petition that the order dated 1.9.2007 was only an inter departmental communication. The final order was issued on 7.2.2008 in favour of the petitioners which was not challenged by the respondent No. 5 in the revision petition. The order of the Registrar has been set aside on the ground that opportunity of hearing was not given to the respondent No. 5 before passing the order dated 1.9.2007. The other ground given by the Cooperative Minister in the order was that the Registrar passed the order under Section 55 of the Act of 2001 whereas it could have been passed only under Section 58 of the Act. The respondent No. 5 filed detailed reply to the writ petition. In the reply preliminary objections were raised. It was submitted that the writ petition deserves to be dismissed summarily being based on false facts. The complaint was filed by one Nanag Ram Meena at his own and not as a power of attorney holder of the petitioners. The application for impleadment was also filed by Nanag Ram Meena in his personal capacity in the revision petition before the Cooperative Minister. The petitioners did not approach the Registrar nor they have filed complaint nor the application for impleadment was ever filed by them and as such by twisting the facts that they have filed the present writ petition for extraneous consideration and are thus abusing the process of the Court. Another objection raised in the reply to the writ petition was that the petitioners demonstrated themselves to be the owner of the plots and allottee of plot Nos.3 and 4 of Shri Ram Colony B, Jawaharpuri Bhawan Nirman Sahkari Samiti Ltd., Jaipur. The petitioners through their power of attorney have sold these plots to M/s. Riddhi Siddhi Infraproject Pvt. Limited and the sale deeds have been registered with the Sub Registrar Jaipur VIII. The writ petition has been filed by the petitioners demonstrating Shri Nanag Ram as their power of attorney which is contrary to their version in the sale deed. It is stated in the objection that Nanag Ram is not holding any power of attorney of the petitioner No. 2 and filed this writ petition and supported the same with affidavit and therefore he is liable to be prosecuted for the same and the writ petition deserves to be dismissed. It is further stated that the petitioners have sold these plots and now how they are concerned with the said plots and under what capacity the present petition has been filed by them as no cause of action survives. Reiterating the facts in the writ petition the respondent No. 5 stated in the reply that before passing Annexure-6 no opportunity of hearing as contemplated in rule 75(6) of the Rules of 2003 was provided to the respondent No. 5 by the Registrar. The State Government taking into consideration the material on record has rightly passed the order dated 4.9.2008 quashing the order dated 1/6:9.2007 passed by the Registrar under Section 55 of the Act of 2001. Hearing by the enquiry officer and by the final authority are two different stages which has to be followed by both the authorities. The respondent No. 5 admitted filing of the reply before the enquiry officer but stated that competent authority has not provided him the opportunity as provided under Rule 75(6) of the Rules of 2003. In the reply it was stated that the application for impleadment was filed by Nanag Ram and not by the petitioners. The respondents 3 to 5 have also filed common reply to the writ petition reiterating the preliminary objections and the submissions made in the reply to the writ petition filed by the respondent No. 5. Mr. N.K. Maloo, learned counsel for the petitioners before submitting arguments in this matter, has drawn attention of this Court that the writ petition was filed by Rajesh Kumar Bhojanagarwala and Smt. Saroj Devi, through their power of attorney Nanag Ram and Ramesh Chand respectively, but later on they have filed vakalatnama on 15.12.2009. Mr. Maloo also contended that on 12.10.2009 the petitioners filed an application under Article 226 of the Constitution of India read with Order 1 Rule 10 CPC by which it was prayed that Raddhi Siddhi Infra Project Pvt. Ltd. 21, Shanti Colony, Sirohi Rajasthan, through its Director Mahendra Kumar Tank may be impleaded as petitioner No. 3. By the order dated 23.10.2009 passed by the Coordinate Bench of this Court, the application filed by the petitioners to implead Riddhi Siddhi Infra Project Pvt. Ltd. was allowed and Riddhi Siddhi Infra Project Pvt. Ltd. 21 Shanti Colony, Sirohi, Rajasthan through its Director Mahendra Kumar Tank being transferee of the land by the petitioners 1 and 2 was impleaded as petitioner No. 3 in the writ petition. Hence it was submitted that the petitioners are entitled to file this writ petition. Mr. Maloo, learned counsel for the petitioners filed a detailed brief note stating that the plots belong to the petitioners but forged pattas of these plots have been issued by the liquidator of the Co-operative Society in favour of the respondent No. 5 Abdul Rehman Qureshi. There were several other complaints regarding the cooperative society and against the liquidator, therefore the Registrar ordered an inquiry under Section 55 of the Rajasthan Cooperative Societies Act, 2001 (in short Act of 2001) and Joint Registrar, Cooperative Societies, Jaipur Division was appointed as inquiry officer by the order dated 3.4.2007. The Joint Registrar, Cooperative Societies submitted a detailed report running into 38 pages to the Registrar. In the report he found grave illegalities committed by the liquidator of the society and the inspectors and the liquidator acted without jurisdiction while issuing pattas and duplicate pattas in respect of large number of plots. The liquidator was not even having complete record of the cooperative society which was not handed over by the society. It was found that large number of forged pattas have been prepared. The Joint Registrar issued notices to the complainant as well as to the respondent No. 5. A general notice was also published in the newspaper, so that interested parties may submit their complaints. The respondent No. 5 himself appeared before the Joint Registrar in pursuance of the notice, and submitted reply and also gave his statement in evidence. He has also examined one Abdul Sayeed in the enquiry. The respondent No. 5 and Abdul Sayeed further stated that they will produce more witnesses and original documents of the plots on the next date but thereafter they did not appear with the witnesses and documents in the inquiry. The statements of complainant Rajesh Kumar and Ganesh Prasad husband of Smt. Saroj Devi (petitioner No. 2) and their witnesses were also recorded by the inquiry officer. The officer bearers of the society, liquidator and inspectors were also examined. The report of the Joint Registrar was examined by the Registrar along with the record and he recorded his findings and directions were given on 6.9.2007 vide Annexure 6, in which he found that the liquidator has no jurisdiction to transfer the Pattas. It was mentioned in the report that the pattas of plot Nos.1, 3, 4, 5 and 138 have been transferred on the basis of forged documents and further found that the cancellation of several pattas by him were not in accordance with law. Directions were issued to the Deputy Registrar for cancellation of proceedings of transfer of pattas in respect of plot Nos.1, 3, 4, 5 and 138. Thereupon the Deputy Registrar passed final order on 7.2.2008 in pursuance of the directions issued by the Registrar. Thereafter the respondent No. 5 filed a revision petition before the Minister Cooperative Department, Government of Rajasthan under Section 107 of the Act of 2001 through Shri Abdul Sayeed but no power of attorney was filed. An application was filed by power of attorney of Shri Rajesh Kumar petitioner No. 1, for being impleaded as party in the revision petition as the enquiry was initiated upon the complaint filed by him and the consequential orders passed in pursuance of said inquiry were challenged by the respondent No. 5 in the revision petition but inspite of it, he deliberately did not implead the complainant i.e. the petitioners 1 and 2 as parties in the revision. The application for impleadment was dismissed by the minister concerned and the order dated 1/6.9.2007 of the Registrar was set aside. The order dated 7.2.2008 passed by the Deputy Registrar, which is the operative order issued in pursuance of the inquiry was not challenged in the revision petition. The revision petition was allowed by the Cooperative Minister on the ground that the enquiry should have been made under Section 58 of the Act of 2001 instead of section 55of the Act of 2001. It was observed in the order that whether the applicant is impleaded as party or not will not make any difference in hearing of the revision petition. The Minister has further observed that the impugned order has been passed without giving opportunity of hearing to the revision petitioner. Ultimately the order dated 1/6.9.2007 passed by the Registrar was set aside. Hence this writ petition was filed by the petitioners for setting aside the order of the Cooperative Minister.
(3.) I have heard learned counsel for the parties at length and perused the writ petition and the reply filed by the respondents. Mr. N.K. Maloo, learned counsel appearing for the petitioners contended that previously this writ petition was filed only by the petitioner No. 1 Rajesh Kumar Bhojanagarwala through power of attorney Nanag Ram and petitioner No.2 Smt. Saroj Devi, through power of attorney Ramesh Chandra. Both the petitioners sold the plot Nos.3 and 4 to M/s. Riddhi Siddhi Infra Project Pvt. Ltd. by registered sale deed dated 30.3.2008. The petitioners in these circumstances in the first instance filed vakalatnama in their personal capacity and filed application under Article 226 of the Constitution of India read with order 1 Rule 10CPC for impleading Riddhi Siddhi Infra Project Pvt. Ltd. as petitioner No. 3 in the writ petition. The application under Order 1 Rule 10CPC was allowed by this Court vide its order dated 23.10.2009 impleading Riddhi Siddhi Infra Project Pvt. Ltd. as petitioner No. 3 Mr. Maloo, learned counsel for the petitioners contended that the argument of the respondent No. 5 and the observation of the Cooperative Minister in the impugned order that opportunity of hearing was not given to the respondent No. 5 is contrary to record. A written reply was filed and Abdul Rehman Qureshi and Sageer Ahmed also examined themselves in the enquiry. The took time to produce more witnesses and original documents but they failed to do so. Full opportunity of hearing was given to the respondent No. 5 and he availed it by filing reply, examination of witnesses and filing reply after the inquiry report dated 13.4.2007. Mr. Maloo drawn attention of this Court towards pages 20, 25, 26 and 43of the enquiry report Annexure 5) wherein expressly names of Abdul Rehman Qureshi and Abdul Sagir have been mentioned. It was also mentioned that they have been given notice twice and informed over their mobile numbers also for producing the original document and evidence if any. Mr. Maloo contended that the Registrar is entitled to pass order for making enquiry into the constitution, working and financial condition of a cooperative society on the basis of application filed before him or on his own motion. The powers under Section 55 are much wader than powers under Section 58 of the Act of 2001. Full opportunity of hearing was given to the respondent No. 5. The respondent No. 5 failed to show as to what prejudice has been caused to him by conducting inquiry under Section 55 of the Act of 2001 rather than under Section 58 of the Act of 2001. The Cooperative Minister acted illegally in dismissing the application for impleadment filed on behalf of the petitioners even though the matter was initiated on their complaint and the finding of the Registrar was recorded in their favour and directions were issued in their favour. They were the affected and interested parties in maintaining the order of the Registrar but they were not impleaded as parties in the revision petition deliberately to obtain exparte order. In fact the revision petition should have been dismissed for non-impleadment of necessary parties. The respondent No. 5 has not challenged the final and operative order dated 7.2.2008 passed by the Deputy Registrar and therefore the order dated 7.2.2008 has become final. The revision petition has been filed only against the order dated 1/6.7.2008 which is not sufficient. Mr. Maloo contended that the petitioner No. 3 Riddhi Siddhi Infra Project Pvt. Ltd. purchased the property from the petitioners 1 and 2 and therefore they are interested parties in the case because they have purchased the land. Lastly Mr. Maloo contended that the proper opportunity of hearing was given to the respondent No. 5, which shows from the enquiry report of the Joint Registrar. Mr. Ashok Misra, learned counsel for the respondent No. 5 drawn the attention of the court that the Cooperative Minister has rightly passed the impugned order and the Registrar Cooperative has got no power to enquire under Section 55 of the Act of 2001. Mr. Misra contended that this writ petition has been filed by the petitioner, who has no locus standi. He has further contended that the power of attorney holder cannot file writ petition under Article 226 of the Constitution of India. For that purpose he has drawn attention of this Court to the case of Dr. (Mrs.) Daksha Sankhla through Ajay Singh, Power of Attorney Holder vs. Jai Narain University Jodhpur RLR 2001(2) page 685 = RLW 2001(2) Raj. 1035. He has read out paras 5, 10, 15, 17 and 18 of the judgment and contended that the petitioners have no locus standi to file the writ petition. He has further contended that the scopes of section 55 of the Act of 2001 and section 58 of the Act of 2001 are quite different. The Registrar has ordered enquiry on the basis of complaint received by him under Section 55 of the Act of 2001 instead of Section 58 of the Act of 2001. The Registrar has wrongly passed order under Section 55 of the Act of 2001 and the Cooperative Minister has rightly passed order after due appreciation of record for enquiry under Section 58 of the Act of 2001. He has drawn attention of this Court towards the case of Deccan Merchants Cooperative Bank Ltd. vs. M/s. Dalichand Jugraj Jain and others (AIR 1969 SC 1320). He has drawn the attention of this Court that the writ petition has been filed by the petitioners only on 21.10.2008, hence the writ petition is neither maintainable nor the order passed by the Cooperative Minister is illegal, hence the writ petition should be dismissed. ;