Arbind Kumar Sahni v. Babu Lal Mukhiya

11

20.4.2009 Heard counsel for the appellant and counsel for the

respondents and is being disposed of by this consent order. A plane and simple issue, under Section 40 of the Bihar Self 2 Supporting Co-operative Societies Act read with the Bihar Self- Supporting Co-operative Societies Tribunal (Constitution & Procedure) Rules, 2002, before the Co-operative Tribunal, was confined to the extent as to whether the appellant was the Chief Executive of a society and as to whether the action taken by him for settlement of certain Sairat were correct? However the Tribunal was not having a judicially trained person with knowledge and expertise to examine pleadings and decide the issue, it has gone totally wayward in its approach. Its judgment infact does not decide the main issue and has adjudicated such issues which were not even remotely connected with the dispute. The result is obviously disastrous. The Tribunal has set aside the election of the year 2005 which was not even questioned before it or even if raised should not have been decided in view of a very limited nature of dispute before it. The Tribunal in the process has also literally proceeded on assumptions in holding that 'A' was working and 'B' was not working and 'A' was a member and 'B' was not the member of society, which was not at all necessary for deciding the limited issue of identification of Chief Executive of the Society and his working in such capacity. . The parties however have jointly agreed that on account of subsequent events in view of the impugned judgment of the Tribunal as instability has been introduced and enforced due to setting aside the election of society and as such a fresh election alone would serve the interest of all the parties. In that view of the matter, this Court 3 would set aside the order of the Tribunal and direct that the District Co-operative Officer of Motihari East Champaran would examine the electoral roll of the society and notify for inviting objection within a period of one month from the date of receipt/production of a copy of this order so that a final electoral roll is prepared by 15th of July,

2009. Thereafter, the election program will be notified so that a fresh election is positively held and a new elected Board of Directors comes in office by 15th of September, 2009 positively. Though this Court had already passed an interim order but the appellant vis-à-vis respondent nos. 1 & 2 are finding it difficult to survive together because they have their own vested interest. The general members of the society, however can not be made to suffer on account of such dispute between the appellant and the respondent nos. 1 & 2. In that view of the matter, as the election program has already been fixed by this Court, this Court would direct the District Co-operative Society to function as a Chief Executive from today and till the final election is held. It is made clear that any existing settlement made in favour of either party or the members shall not be disturbed by any one unless the District Co-operative Officer in capacity of Chief Executive of the Society till constitution of new Board of Director finds it necessary he may proceed to do so after giving an opportunity of hearing to the affected person and by a reasoned order.

It goes without saying that the District Cooperative Officer will also maintain status-quo as existing today in respect of any 4 settlement which has not been cancelled till date. In this interregnum period till election is held, if any person is aggrieved by any action or order of the District Cooperative Officer, he will have a remedy before the Registrar of the Cooperative Society who will decide the dispute keeping in mind that the election is to be held ultimately held within the fixed time limit under his consented order. Before parting with this Court must observe that if Rule 3 of the Bihar Self-Supporting Co-operative Societies Tribunal (Constitution & Procedure) Rules, 2002 envisages that the Tribunal shall consist one or more members who shall be appointed by the Government from amongst the following categories of persons:- (i) Government Servant, retired or serving not below the rank of Special Secretary to Government of Bihar.

(ii) Officer of Bihar Co-operative Service, retired or serving, not below the rank of Joint Register, Co- operative Societies, (iii) Retired Senior District and Sessions Judge, care must be taken by the State Government that in any event the Tribunal should consist at least of one judicial person who may be assisted either of them i.e. the Government Servant or an officer of Bihar Co-operative Society. Such association of judicial member would be necessary because the Tribunal has to decide the question after appreciation of evidence and the hearing the parties. This Court, therefore, would direct the State Government to reconsider its decision for constitution of the Tribunal with association of a judicial 5 member. With the aforesaid observations and directions this appeal is disposed of. Let a copy of this order be forwarded to the Chief Secretary of the State of Bihar. . Rsh (Mihir Kumar Jha, J.)