KHUSHI RAM Vs. STATE OF H.P.

JUDGEMENT

(1.) The petitioner claiming to be a representative of Bhamnoli Unemployed Transport Co -operative Society participated in the election as Director of HIMFED and was elected. The respondent No. 4, Jaishi Ram, challenged the said election of the petitioner on the ground that the society represented by the petitioner was defaulter and, therefore, could not send the delegate nor could such a delegate be elected as Director. The said petition was allowed by the Registrar. In the appeal filed by the petitioner against the decision of the Registrar, the Secretary (Co -operation) to the respondent Government of Himachal Pradesh set aside the said order on the ground that the Society named above should have been granted an opportunity of hearing before declaring the said Society a defaulter. Consequently, the order of the Registrar was set aside and the matter was remanded to the respondent Registrar to hear and decide the same after giving opportunity to the said society, (Annexure P -5). While so remanding the case, the respondent Secretary held that till the decision of the Registrar, the seat occupied by the petitioner would remain vacant and will be filled in accordance with the said decision. It is this part of the order which is under challenge in this writ petition. By an interim order passed by this Court on 31 -8 -1994, the petitioner is continuing as a Director of HIMFED.

(2.) In the context of the aforesaid facts and circumstances of the case, the question requiring our consideration is whether the seat occupied by the petitioner could be declared vacant before deciding that the petitioner was disqualified to hold the same ? The respondent Secretary has decided the matter under Rule 41 (2) of the H. P. Co -operative Societies Rules, 1971 (hereinafter called the Rules). A bare reading of this Rule indicates that a member of the committee of any Society ceases to hold office as such if he becomes a defaulter directly or indirectly of his society or any other Society. Clearly, therefore, as long as a decision about the petitioner becoming a defaulter directly or indirectly, is not given, he cannot cease to hold the office Apparently, therefore, the impugned order, in so far as it declares the seat occupied by the petitioner vacant, is contrary to Rule 41 (2) of the Rules. The submission of the learned Advocate General for the respondents is, however, that the matter should have been dealt with under Rule 41 (1) (jj) and not under Rule 41 (2) of the Rules. Even if the said submission is accepted, the same would not justify declaring the seat vacant before a decision about the disqualification of the petitioner in that behalf. Under the circumstances, this Court finds no justification for the aforesaid direction in the impugned order. That direction in the impugned order is, therefore, quashed. As a necessary consequence, the post of Director occupied by the petitioner is treated as continuing until the matter is decided by the respondent Registrar in accordance with the remand order.

(3.) The petition succeeds and is allowed as aforesaid. No costs. Petition allowed.