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Judgment
P.K. Mohanty, J.—The petitioner Kalijai Primary Fisherman Co-operative Society Limited and its Secretary have filed this writ application for quashing the order dated 10-7-1997 passed by the Assistant Registrar of Co-operative Societies (FY), Chilika Circle, Annexure-5 directing winding up the petitioner No. I society and appointing a Liquidator, opp. party No. 2 The order has been passed by opp. patty No. 1 in purported exercise of the powers conferred u/s 72 of the Orissa Co-operative Societies Act, 1962.
The substantial ground on which the impugned order in Annexure-5 is challenged is that the order passed by the Assistant Registrar (FY) is without jurisdiction since the power conferred u/s 72 of the Act was withdrawn by the Government in their notification dated 10-7-1993, a copy of whicih is Annexure-10. - The petitioners contention is that the power of the Assistant Director, Fisheries u/s 72 of the Act had been withdrawn by the State Government and that the order in Annexure-5 dated 10-7-1997 was without jurisdiction and thus ab initio void. The petitioners have challenged the impugned order on several other'' grounds like non-affording of the opportunity to the petitioner No. 1 society, to file show cause, the alleged report on the basis of which the order is passed was not, supplied to petitioner and the enquiry was conducted behind their back, the report of enquiry was neither supplied to the financier Bank nor the Apex Society as required under subsection (4) of section 65 of the Orissa Co-operative Societies Act (in short ''the Act'') and that the ingredients of section 65 of the Act were absent for making an order of liquidation.
The opp. parties 1 and 3 have filed their counter affidavit refuting the claim and controverting the allegation made in the writ application, It is the stand of these opp. parties that the impugned order was issued after due enquiry being made after taking evidence of the witnesses, A copy of the enquiry report is Annexure-A/1. It is further, stated ''that the petitioner having preferred an appeal before the Member, Co-operative Tribunal and the same having been dismissed on 26-9-1997 in Misc. Case No. 119 of 1997, the present writ application is not maintainable, the said order having not been challenged. It is the specific stand of the opp. parties that the Assistant Registrar Cooperative Societies (FY), Chilika Circle issued show cause notice on 6-6-1997 u/s 72 of the Orjssa Co-operative Societies Act, 1962. The petitioner No. 1 society received the show cause notice, but''did not appear before the A. R. C. S. nor filed any objection, but Mr, Muralidhar Ghadei who was the President of the society has falsely alleged that he was seriously ill and for that he could not attend. However, it is stated that one Ramesh Chandra Ghadei was present and tendered his evidence. Basing on the evidence of Sri Ghadei and the report of the S. A. R. C. S. the Assistant Registrar of Co-operative Societies passed the impugned order. Several illegalities and irregularities committed by the petitioner No. 1 society had been narrated in the counter affidavit. It is further stated that the Society having not borrowed any finance from any Financing Bank, question of obtaining consent or informing the Financing Bank before passing the order did not arise.
In paragraph-17 of the counter affidavit it has been specifically averred that the Assistant Director of Fisheries is performing his duties as Assistant Registrar of Co-operative Societies (FY), Chilika Circle, that powers under sections 72 and 73 of the O. C. S, Act. 1962 has been withdrawn from all Officers of she Directorate of Fisheries is a fact, but the powers vested with the Assistant Registrar of Co operative Societies (FY), Chilika Circle, Balugaon as A. R. C. S. by the Government order dated 5-2-1992 (Annexute-G/1) has not been withdrawn by the Government. It is contended that the powers having not been withdrawn, the order under Annexure-5 cannot be questioned. Several other factual averments have been made with regard to the irregularities and illegalities committed by the Society, but that may not be necessary for the purpose of deciding the present with application.
Pursuant to the direction of the Court dated 24-2-1998, an affidavit has been Bled by the Assistant Registrar, Cooperative Societies, Balugaon Circle as to whether the order in Annexure-10 has been superseded by the Government by subsequent order. It has been stated in paragraph-4 thereof that the notification dated 20-7-1993, Annexure-10 is a notification under which the powers u/s 72 of the O.C.S. Act vested with the Assistant Director, Fisheries in the District Office cadre have been withdrawn, but so far as the Assistant Director of Fisheries functioning as Assistant Registrar of Cooperative Societies have not been withdrawn. It has been further stated that by order dated 20-7-1993 the State Govern- ment withdraw the notification dated 7-2-1992, but such order having not spelt out anything about the withdrawal of the power that was conferred on the Assistant Registrar, Co-operative Societies-in-charge of circles in terms of the order of the Government in the department of -Co-operation dated 5-2-1992, the notification dated 20-7-1993 has not been admittedly, superseded. A copy of the minutes of the meeting of the Chief Minister on 5-4-1988 on Chilika Fisheries has been annexed as Annexure-N/l to suggest that one Assistant Director of Fisheries should be posted as Secretary to the Apex Society and he should be empowered under the Orissa Co-operative Societies Act to function as A.R.C.S. (Action : Secretary, FF & AH/Director, Fisheries/Registrar, Co-operative Societies/Secretary. A & C). But that is of no avail for the decision as to whether the notification at Annexure-10 has been superseded subsequently,
The main thrust of argument of Sri Ashok Mohanty, learned counsel appearing for the petitioners is that the order in Annexure-5 is a nullity being without jurisdiction since the power conferred u/s 72 of the Assistant Director of Fisheries was withdrawn by the Government notification dated 20-7-1993 (Annexure-10). It is contended that the powers earlier conferred on the Assistant Director of Fisheries at Item No. 11 of Annexure-10 under,, section 72 of the Act had been withdrawn by the said order dated 20th July, 1993 (Annexure-10). Undisputedly by Government of Orissa in Co-operation Department order dated 5th February. 1992 (Annexure-N), the State Government in exercise of powers u/s 3(2) of the Orissa Co-operative Societies Act, 1962 conferred on the Officers mentioned in column-2 of the schedule, the powers of the Registrar for administrative convenience. According to the said order at sl No. 5, the Assistant Registrar of Co-operative Societies in-charge of circles have been conferred with the powers on the Assistant Registrar of Co-operative Societies in charge of circle with the powers exercisable by the Registrar under sections 72, 73, 75, 76 and 77 of the Orissa Co-operative Societies Act, 1962 and Rules-84, 86, 87, 90, 91 and 93 of the Orissa Co-operative Rules, 1965 in addition to other powers. It appears that the Registrar vide his order dated 2-6-1992 (Annexure-O) assigned the local limits to which the Assistant Registrar of Co-operative Societies, Chilika Circle can extend his jurisdiction. It is the specific stand of the Commissioner-cum-Sectetary to the State Government in Co-operation Department in his additional affidavit filed on''12th May, 1998 that originally the powers under sections 72, 73, 75, 76 and 77 of the O.C.S. Act and Rules 84, 86, 87, 90, 91 and 93 of the O.C.S. Rules, Rules were conferred by order dated 7-2-1992 published in extraordinary Orissa Gazette dated 24-2-1992, copy of which is Annexure-P. In the said Government order at sl. No. 11, the Assistant Directors of Fisheries were vested with the powers under sections 6, 7, 8, 10 (2), 12. 14. 14-A, 16(2-a), 28, 30. 33. 64, 65, 66, 67, 68, 70, 72, 73, 75, 76, 77, 102, 103, 104, 105. 106(1) (b), 108, 114, 116 (2), 120 and 127 of the Act and under several Rules as enumerated therein. There is a note that in case where the matter concerns two more Societies of which one is not within his administrative control, the powers under these sections and rules shall be exercised by the Officers of the regular Co-operative Department having jurisdiction. It is the specific stand in the additional affidavit filed by the Department that some of the powers were withdrawn by the notification dated 20-7-1993 (Ahnesure-10) for administrative purposes.
In the notification dated 7th February, 1992 published in the Extraordinary Orissa Gazette dated 24th February, 1993, the State Government in exercise of powers conferred by sub-section (2) of section 3 of the Orissa Co-operative Societies Act, 1962 conferred- on the Officers specified in col. 2 of the schedule, appointed previously to assist the Registrar. The power of the Registrar specified respectively against each in col. 3 thereof to be exercised within such local limits as may be assigned by the Registrar. The relevant portion of the order and the schedule may be quoted hereunder :
"CO-OPERATION DEPARTMENT ORDER The 7th February, 1992
S. R. O. No. 139/92--In exercise of the powers conferred by sub-section (2) of section 3 of the Orissa Co-operative Societies Act, 1962 (Orissa Act 2 of 1963), the State Government do hereby confer on the officers specified in column (2) of the schedule given below appointed previously to assist the Registrar, the powers of the Registrar specified respectively against each in column (3) there of to be Exercised within such local limits as may be assigned by the Registrar.
SCHEDULE
Sl. No. Designation of Officers Name of the sections and Rules under the Orissa Co-operative Societies Act, 1962 (Orissa Act 2 of 1963) and rules made thereunder. Remarks.
1 2 3 4
Director of Industries, Orissa.
(a) Sections- 6,7.8.10(2) 12.14.14- A.16(2.a).l7. 28.30.32.33.35(3).599(1). -63,64,65.66.67.68.70. 72.73.75,76.77.102. ; 103,104.105,106(1)(b) 108,116(2),l20,121(2), . 127,128(3) and cases transferred by the Registrar of Co-operative Societies by specific order under Chapter XIII of the said Act.
(b) Rules 7.9.10,13.14, 14-A,16(2)(i).17,18.19(2). 25.31.32.33(d) 35.37(2). 38,41,42,44.49.5X6), 53(7), 53(9), 54(1)(b), 56, 61,76,70.81,84.86,87,90. 91.93,139(3).139(6),156.
In cases, where the matter relates to a Society within his administrative control provided that where the matter concerns to two or more societies of which one is not within his administrative control the powers under these sections and rules shall be exercised by the Officers of the regular Co-operative Department having jurisdiction.
XX XX XX XX
Director of Fisheries, Orissa. (a) -do- (b) -do- -do- -do-
Deputy Director of Fisheries.
(a) Sections-6.7,8,l0(2). 12.14.14-A, 16(2-a). 28.3032.33,35(3).64,65.66.67, 68,70.72,73,75.76.77,80. 102.103,104,105.106(l)(b), 108.114,116(2).120,121(2), 127.
-do-
(b) Rules-7.9.10.13.14,14-A, 16(2)(1). 17.18,25.31,32.33(d), -do-35.41.42.49.54(l)(b),67,78,81. 84.86,87.90.91.93,139(6),144. 156.
-do-
Assistant Director, Fisheries.
(a) Sections- 6,7,8,10(2),12, 14,14-A.16(2-a).28,30,32,33. -do. 35(3).64.65.66,67.68.70.72,73, 75,76.77.80,102,103.104,105. 106(l) (b).108,114.1l6(2).120, 121(2).127.
-do-
(b) Rules- 7,9,10,13,14.14-A. 16(2)(1 ). 17.18.25,31,32.33(d), 35.41.42.49.54(l,(b).67,78, 81.84,86,87.90,91,93. -do-139(6),144.156.
-do-
Thus the Assistant Directors, of Fisheries were vested with the powers u/s 72 of the Co-operative Societies Act in the aforesaid notification.
The Government of Orissa in Co-operaton Department order dated 20th July, 1993, copy of which is Annexure-10 in exercise of the powers conferred by sub-section (2) of section 3 of the Act and in partial modification of the order of the State Government in Co-operation Department dated 7th February, 1992, 30th January, 1993, 26th February, 1993 and 16th March, 1993 withdrew from the Officers specified in col. 2 of the schedule, the powers of the Registrar specified respectively against each in column (3) thereof. The relevant portion of the notification and schedule may be extracted below :
"GOVERNMENT OF ORISSA. CO-OPERATION DEPARTMENT ORDER Bhubaneswar dated 20th. July, 1993.
No. 14841 : Coop. In exercise of the powers conferred by sub-section (2) of section 3 of the Orissa Cooperative Societies Act, 1962 (Orissa Act 2 of 1963), and in partial modification of the order of the State Government in, Cooperation Department No. 3327/Coop. dated the 7th. February, 1992, No. 1922/Coop. dated the 30th. January, 1993, No. 3907/Coop. dated the 26th. February, 1993 .and No. 5178/Coop, dated the 16th. March, 1993, the State Government do hereby withdraw from the officers specified in column (2) of the schedule given below the powers of the Registrar specified respectively against each in Column (3) thereof.
SCHEDULE
Sl. No. Designation of Officers. Name of the sections under the Orissa Co-operative Societies Act, 1962 and the Rules made thereunder. Remarks.
1 2 3 4
XX XX XX XX
Director of Fisheries, Orissa (a) Section- 32, 72, 73, 75, 76, 77,
(b) Rules- 81, 86, 87, 90, 91, 93.
Deputy Director of Fisheries, (a) Sections- 32, 72, 73, 75, 76, 77.
(b) Rules- 81, 86, 87, 90, 91, 93.
Assist ant Director, Fisheries. (a) Sections- 72, 73, 75, 76, 77.
(b) Rules- 84, 86, 87, 90, 91, 93.
District Fisheries I Officer, Cuttack,Balasore, Ganjam, Puri, Balangir, Kala- handi, Sambalpur. (a) Sections- 72, 73, 75, 76, 77.
(b) Rules- 84, 86, 87, 90, 91, 93.
Thus, there cannot be any manner of doubt that the power'' conferred on the Assistant Directors of Fisheries to exercise the powers u/s 72 of the O.C.S. Act by notification dated 7th February, 1972, 30th January, 1993, 26th February, 1993 and 16th March, 1993 had been withdrawn by the notification dated 20th. July, 1993, a copy whereof is Annexure-10. In the counter affidavit filed on behalf of opp. parties 1 and 3 at sub-paragraph of paragraph-17, it has been clearly stated that the Assistant Registrar of Co-operative Societies (FY), Chilika Circle, Balugaon is not an Officer of the Co-operative Department, but has been posted as Assistant Registrar of Co-opertive Societies (FY), Chilika Circle, Balugaon vide order No. 18546 dated 4-11-1995 of the Fisheries and A. R. D. Department of Orissa, a copy of which is Annexure-F/1. It is further stated that the Assistant Director pf Fisheries is performing his, duties as Assistant Registrar of Co-operative Societies (FY), Chilika Circle, Balugaon. Reference has been made to the Government Order dated 5th February, 1993 wherein the Assistant Registrar of Co-operative Societies (in charge of circles) except the Assistant Registrar of Co-operative Societies, Gunuput circle were conferred with the powers to exercise the powers u/s 72 of the O.C.S. Act. There is no dispute nor is it relevant as to whether the Assistant Registrars of Co-operative Societies are still authorised to exercise the powers u/s 72 of the O.C.S. Act. But the question is whether the order by which the Assistant Directors of Fisheries were conferred and vested with the powers to exercise the powers vested u/s 72 of the Act is still in operation or has been withdrawn by the Government notification dated 20th July, 1993. It would be evident from the additional affidavit of the Commissioner-cum-Secretary to the Government that undisputedly some of the powers were withdrawn for administrative purposes by order dated 20th July, 1993. Now let us consider which of the power was withdrawn and as to whether the powers u/s 72 of the Act conferred on the Assistant Director of Fisheries has been withdrawn or that the same still continues with them. At sl. No. 11 of the Government Order dated 20th July, 1993 (Annexure-10) the powers vested with the Assistant Directors of Fisharies u/s 72,73,75,76 and 77 and Rules 84.86,87, 90/91 and 93 have been withdrawn by the said notification. In that view of the matter we have no manner of doubt that the Assistant Directors of Fisheries who were authorised to exercise the power u/s 72 of the Orissa Co-operative Societies Act by Government order dated 7th February, 1992 bad been withdrawn by notification of 1993 (Annexure-10).
In view of our finding that the Assistant Directors of Fisheries who were authorised by the State Government u/s 3(2) of the. O.C.S. Act to exercise the power of Registrar of Co-operative Societies u/s 72 of the Act by Government order dated 7th February, 1992 had been withdrawn by order dated 20th July, 1993, the question that now arises for consideration is whether the order of the Assistant Director of Fisheries in purported exercise of power as the Assistant Registrar of Co-operative Societies u/s 72 of the Act as in Annexure-5 directing winding up of the society and appointing a liquidator can be sustained in law. The Assistant Director of Fisheries having divested of the authority to exercise the power of the Registrar u/s 72 of the Orissa Cooperative Societies Act by Government order dated 20th July, 1993 the impugned order is without jurisdiction and cannot be sustained.
It has been stated in the counter affidavit that the petitioner No. 1 society having committed illegalities and irregularities an enquiry was conducted by the S.A.R.C.S. and basing on that report show cause notice was issued. However, the petitioners claim that the President being ill, was not able to file show cause and appear on the date fixed. It is pleaded in the counter affidavit that one Ramesh Ghadei had appeared and his evidence was recorded and after enquiry the impugned order under Annexure-5 was passed. Since the Assistant Director of Fisheries was divested of its power u/s 72 of the O.C.S. Act, the impugned order in Annexure-5 is without jurisdiction and, therefore, we need not go into the question as to whether or not the petitioner No.1 society was afforded proper and reasonable opportunity of showing cause and participate in the proceedings, The contention of the State that the appeal filed by the petitioner before the Co-operative Tribunal having been dismissed and that order having not been challenged, the writ petition is not maintainable in law also cannot be entertained, since the order under Annexure-5 is held to be ex facie without jurisdiction.
An application for intervention has been filed by one Sri Ramesh, who claims to be a member of Kalijai Primary Fisherman Co-operative Society and a member of Board of Directors of the Society and by order dated 23-2-1998 the said application was to be considered at the time of hearing and accordingly, the same may be considered now. The intervenor contend inter alia that the appeal filed by the petitioner before the State Co-operative Tribunal has been disposed of on 10-12-1997 and, therefore, the petitioners have no right or locus standi to file and/or continue the writ petition inasmuch as it is guilty of various acts of malfeasance, misfeasance, defalcation and misappropriation and as such, the writ petition is not maintainable. Suffice it to say that in view of our finding that the impugned order is without jurisdiction, we are not inclined to entertain the application for intervention which is accordingly rejected.
In aforesaid view of the matter, the impugned order under Annexure-5 in directing winding up the petitioner No. 1-Society and appointing a liquidator dated 10-7-1997, is quashed. However, it is open to the appropriate authority to initiate a fresh proceeding in accordance with law and after following due process and procedure laid down under law may proceed with the matter and pass appropriate orders on which we express no opinion.
The writ application is thus allowed to the extent indicated, but there shall be no order as to cost.
P.C. Naik, J.
I agree.
Writ application allowed.