CHOPRA, J. - (1.) BY this writ petition the petitioner has challenged the validity of section 32 (1) and (2) of the Rajasthan Cooperative Societies Act, 1965 and has prayed that it be declared ultra vires and void not only of section 14 of the Constitution of India but section 29 and 33 of the Rajasthan Cooperative Societies Act. The petitioner has further claimed that the non-petitioners may be restrained from interfering with the day to-day working of the petitioner society and the proceedings initiated in pursuance of notice dated 17. 5. 93 be quashed and set aside and the respondent No. 3 that is the Joint Registrar, Cooperative Department, Bikaner be restrained from interfering with the day to day working of the petitioner society.
(2.) THE facts necessary to be noticed for the disposal of this writ petition briefly stated are that one non-petitioner no. 4 Shri Amarsingh was elected as Chairman of the petitioner society along with certain other persons who were elected as members of the Executive Committee. When it was found that the Chairman has committed various illegalities and irregularities with vested interest at the cost of and against the interest of the society and its members or has misused his powers with ulterior motive then majority of the members requested the controversy may be resolved about the activities of non-petitioner no. 4. When inspite of the repeated requests and requisition having been sent under section 30 of the Act, the general body meeting was not called, the members of the society moved an application under section 31 to the Asstt. Registrar for calling the general body meeting. A notice was issued to the members of the general body in forming them that the general body meeting has been fixed on 23. 4. 93 at 1. 00 PM to discuss the agenda which included a no- confidence motion against non-petitioner no. 4 Amarsingh as also withdrawal of the Chief Executive Officer. In the general body meeting the no-confidence motion against the non-petitioner no. 4 was passed. Request was made that non-petitioner no. 4 should not preside over the meeting. That application has been marked as Annex. 2 and the refusal of the Vice-President to preside over the meeting has been marked as Annex. 3. The resolution moved by the members has been marked as Annex. 4. The no-confidence motion against non-petitioner no. 4 was unanimously passed. Other resolutions were also carried out, the copy of the proceedings of the general body meeting has been marked as Annex. 5. However, non-petitioner no. 4 moved an application under Section 32 (1) before the non-petitioner no. 3 challenging the above resolution. The Joint Registrar before whom such an application was made issued a notice under section 32 (1) to the Executive Officer only vide his order dated 17. 5. 93. Copy of that has been marked as Annex. 7. Section 32 (2) of the Act provides that as soon as such a notice is issued by the Registrar, the resolution automatically stands suspended and this is how the validity of section 32 (2) of the Act has been challenged because it provides to the Registrar are arbitrary, unreasonable and excessive. Bye-law 11 (8) of the society provides that general body has the power to remove an elected Chairman of the society and when that has been done continuation of that person as the Chairman of the Executive Committee is against the interest of the society. Rule 38 (5) of the Rajasthan Cooperative Societies Rules, 1966 also empowers the general body to remove the Chairman and officers of the society. When general body has passed a resolution expressing no confidence in the Chairman issuing such a notice by the Joint Registrar which makes that resolution ineffective is contrary to the interest of the society and results in misuse of the powers and is collusive in character; and, therefore, it has been claimed that the action of the non-petitioner no. 3 is arbitrary and against the democratic Cooperative Movement. Certain allegations are contained in the writ petition against the Chairman and thereby it has been tried to be shown that the general body was very much interested in removing such a Chairman who was acting against the interest of the society. No reply has been filed on behalf of the Department. However, respondent no. 4 has chosen to file a reply. In that reply a preliminary objection has been taken that the Manager of the society has no locus stand to file a writ in the name of the Samiti challenging the notice issued by the Registrar for the cancellation of the resolution of the general body. This writ petition has been filed by the Manager with oblique consideration because he was aggrieved against the posting of the Chief Executive Officer in the Samiti at the behest of respondent no. 4. It was claimed that majority of the members never gave an application for calling the meeting as required by section 31 (1) of the Act of 1965. This is a mis-statement of fact. It was also claimed that no requisition was ever given to the committee of the society for calling the general meeting. However certain members moved an application to the Asstt. Registrar of Cooperative Society directly for holding the meeting and he did issue a notice for calling that meeting. The order of the Asstt. Registrar has been filed as Ann. R. 4/1 and it nowhere recites that the committee has not called a meeting on any requisition of the members. The order calling the meeting has not been issued by the Registrar but by the Asstt. Registrar; whereas powers under Section 31 (1) of the Act can only be exercised by the Registrar and powers under Section 31 (2) of the Act can be exercised by any Officer authorised by the Registrar. Out of 210 members 106 members attended the meeting and the resolution was passed by the majority of them. According to the respondent no. 4 the entire meeting was an eye-wash. Violent atmosphere was created on account of the behavior of certain members. It was also claimed that the general body has no power, to remove the Chairman of the Society.
(3.) POWER lies with the Registrar under section 36 to do so and, therefore, the entire proceedings are nonest. Allegations contained against the Chairman are totally false. Section 31 (1) and (2) are intra-vires. They provide for the suitable guidelines and, therefore, no unguided powers have been conferred on the Registrar to act under section 32. Section 16 of the General Clauses Act does not apply in this case because it is not a case of appointment but a case of election and, therefore, unless the power is conferred on the society to remove the Chairman even if certain provisions have been made in the Rules. i. e. Rules 35 (5) of the Rules of 1966 or for that matter in the bye laws, they being contrary to the provisions of the Act cannot be sustained. It was also claimed by respondent no. 4 that he has deposited the amount demanded by the Manager although not in 15 days but within a reasonable time. A rejoinder has been filed to the reply filed by respondent no. 4 in which the contents of the writ petition were reiterated and the contentions raised in the reply were controverted. It was claimed that powers under section 36 conferred upon the Registrar are totally independent of the powers which have been exercised by the general body. These powers as per Mr. Joshi relate to suspension and removal but the general body has the power to file the proceedings on behalf of the society. In filing the writ petition, no malafides are involved as on account of the action of the Joint Registrar the entire functioning of the society has come to a stand-still and that has affected the affairs of the society and, therefore, the society is an aggrieved party. It was also claimed that all the members have been served with notice under postal certificate and that is an accepted mode of service of notice and it need not sent by registered post.- We have heard Shri KM, Joshi appearing for the petitioner, Shri L. S. Udawat, Addl. Advocate General appearing for the State and Shri M. S. Singhvi appearing for respondent no. 4. ;