Abdul Aziz Dar vs Dy. Director Horticulture and Others

By means of this petition under Article 226 of the Constitution, the petitioner has challenged the validity of an order passed by the Deputy

Director Horticulture acting as Registrar, Co-operative Societies, whereby he has superseded the petitioner's society u/s 29 of the J. & K. Co-

operative Societies Act, 1960. The condition precedent for the exercise of the power of supersession is that a co-operative society persistently

makes default or is negligent in the performance of the duties imposed upon it by law or is guilty of committing any act which is prejudicial to the

society or its members or is otherwise not functioning properly. In the present case, the order of supersession proceeds on the footing that an

amount of Rs. 4.41 lacs had become overdue for payment up to 30-6-1979, but the petitioner had not taken any steps to liquidate the same and

that this was solely due to the negligence of the management. This is a specific charge and the society has not been able to clear the charge despite

notice. Even in the writ petition, no explanation has been provided for non-payment of the amount. In the circumstances, it cannot be seriously

contended that the condition precedent for the exercise of the power did not exist or that the order of super- session was passed without proper

satisfaction by the Registrar.

The argument of the learned counsel for the petitioner, however, is that no notice was served on the petitioner. The order of supersession recites

that notice was served on the petitioner, but the petitioner did not care to respond. There is a presumption of regularity attached to an official act. If

the order of supersession states that the notice was served on the petitioner, there is a presumption that it was actually served. It is, no doubt, open

to the petitioner to disprove this presumption but a mere bald assertion to the effect that the notice was not actually served is not enough to

displace the presumption. Accordingly we are not inclined to agree with the learned counsel for the petitioner that on a bald statement in the

petition, we should assume that no notice was actually served on the petitioner.

Sub-section (4) of Section 29 provides that before an order of supersession is made under Sub-section (I) the Registrar shall consult any

financing institution to which the co-operative society concerned may be indebted. The Registrar has consulted the Punjab National Bank to which

the petitioner's society was indebted before the impugned order was passed by him. He has, however, consulted the Bank while the action for

supersession was in process. The argument of the learned counsel for the petitioner is that Sub-section (4) required the Registrar to consult the

bank before he had initiated the action under Sub-section (1). We are not inclined to agree with this contention. In our opinion, on a proper

interpretation of sub-section (4), the true legal position is that the Registrar is required to consult the financing institution at any stage before he

passes the final order of supersession under Sub-section (1). We say so because the object of consultation simply is to put the financing institution

on guard and have its views on the question whether the co-operative society should be superseded or not. That is obviously so because the

financing institution will be as much affected by the order of supersession as the cooperative society inasmuch as the management of the society

would naturally change. The intention of law is that the financing institution should have a say in this change in order to protect its interests. That

purpose will be served if the financing institution is consulted before the final order of supersession is passed by the Registrar. Accordingly we are

unable to read in Sub-section (4) the requirement that the financing institution should be consulted before the action for supersession is initiated.

The argument to the contrary of the learned counsel for the petitioner must fail

The result, therefore, is that there is no merit in this petition. It is dismissed accordingly.

At this stage learned counsel for the petitioner asked for leave to appeal to the Supreme Court forgetting that the rules provide that a separate

application should be moved in that behalf. However, we would not insist on the strict compliance of the rules in the present case, as we feel that it

would simply delay the matter without any corresponding advantage to the petitioner. We say so because after having considered the matter, we

are of the opinion, that the case does not involve any substantial question of law which needs to be decided by the Supreme Court. Accordingly

we decline to grant the leave to appeal to the Supreme Court.