Daroga Sahni S/o Ramlakhan Sahni vs The State of Bihar

Heard learned counsel for the petitioners; State;

respondent no. 5 and the State Election Authority.

The case has been listed under the heading ''For

Orders'' in terms of the order dated 16.10.2015. However, with

consent of the parties, the main writ petition itself has been heard and

is being finally disposed off.

The petitioners have moved the Court for the

following reliefs:

"(i) For quashing the order passed by the District Co-operative Officer, East Champaran, Motihari, issued under Memo No.-892 dated 29.08.2015, contained in Annexure-4 to the writ petition, whereby and whereunder the District Co- operative Officer has rejected the prayer of the petitioners to dissolve the Managing Committee of the society in view of the provisions of Section-41 (5) of the Bihar Co-operative Societies Act, 1935 and has also debarred the petitioners for a period of five (5) years from contesting the election in the managing committee of the soci ety. (ii) For issuance of a writ in the nature of Mandamus directing/commanding the Respondents not to give effect to the said order. (iii) For any other relief or reliefs for which the petitioners are entitled for, in the facts and circumstances of the case."

The basic grievance of the petitioners is that by the

order passed by the District Co-operative Officer, East Champaran

(respondent no. 3), the petitioners, who were members of the

Managing Committee and had resigned have been debarred from

standing for any post of the Managing Committee for a period of five

years, purportedly under Section 41(1)(iv) of the Bihar Co-operative

Societies Act, 1935 (hereinafter referred to as the ''Act''), which

according to them is absolutely without jurisdiction as the condition

precedent for exercise of such power did not exist.

Learned counsel for the petitioners submitted that the

total strength of the Managing Committee of the Society in question

is 11, including one Chairman and the petitioners were the 10 elected

members of the Managing Committee. It was submitted that they

resigned from their post but the District Co-operative Officer instead

of dissolving the entire Managing Committee and going in for fresh

election has not done the same and only disqualified the petitioners

for standing for any election for the next five years. It was submitted

that the provisions of Section 41 of the Act under which the order

impugned has been issued relates to there being a stalemate in the

constitution or functioning of the Board. It was submitted that such is

not the position in the present case as the petitioners had resigned

and thus, the jurisdiction of the authority to intervene being limited

to there being a stalemate in the constitution or functioning of the

Board, not being satisfied, any order passed is illegal. Learned

counsel submitted that with regard to the mandatory requirement of

the entire Managing Committee being dissolved, in case more than

50% of the elected office bearers resign, has been settled by a

Division Bench of this Court in the case of Indradeo Prasad vs.

State of Bihar reported as 2016(4) PLJR 903.

Learned counsel for the State and respondent no. 5 do

not dispute the aforesaid position.

Having considered the matter, the Court finds that the

exercise of power under Section 41(1)(iv) of the Act by the District

Cooperative Officer is erroneous as the conditions precedent for

invoking such power are not satisfied in the present case. The

resignation of the petitioners can in no way be construed to be a

stalemate in the constitution or functioning of the Board. Rather, it

was a straight forward case for exercise of power under Section

41(5)(b) of the Act and dissolve the Managing Committee. The view

of the Court is fortified by decision of the Division Bench of this

Court in the case of Indradeo Prasad (supra) to which I was a party.

Accordingly, the order impugned dated 29.08.2015 passed by the

respondent no. 3 is set aside. The Managing Committee of the

Society in question stands dissolved. The State Election Authority is

directed to hold election of the office bearers of the Managing

Committee of the Society in question expeditiously. It is further held

that the petitioners shall be entitled to contest the election, if

otherwise not unsuited.

The writ petition stands allowed in the aforementioned

terms.