TMI Blog2014 (5) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... or the liquidation of the Society. No doubt the Registrar exercising powers under Section 48 of the Bihar and Orissa Cooperative Societies Act is held to be a Court - it does not necessarily follow from that the Registrar exercising such powers has to be necessarily a person with judicial/legal background. We would like to emphasize the need for appointment of suitable persons not only as Registrar, Joint Registrar etc. but as Chairman and members of the tribunal as well. While discharging quasi-judicial functions Registrar, Joint Registrars etc. have to keep in mind that they have to be independent in their functioning. They are also expected to acquire necessary expertise to effectively deal with the disputes coming before them. They are supposed to be conscious of competing rights in order to decide the case justly and fairly and to pass the orders which are legally sustainable. The State Government shall, keeping in mind the objective of the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made - for appointment of the Chairman and Members of the Tribunal, the sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several other enactments the administrative officers perform such quasi judicial functions. 3. After considering the submissions of both the parties, the High Court repelled the challenge of the Petitioner to the vires of the aforesaid provisions of the Act and dismissed the Writ Petition filed by the Petitioner. 4. Against the aforesaid judgment, present Special Leave Petition is preferred under Article 136 of the Constitution. The Petitioner has appeared in person and filed written submissions. At the time of arguments, he referred to and read out certain portion of those written submissions and submitted that he did not have to say anything more than what is contained therein. The learned Counsel for the Respondents on the other hand relied upon the reasoning given by the High Court in the impugned judgment to justify the said order. We have perused the judgment minutely and have also gone through the written submissions of the Petitioner. 5. Before adverting to these submissions, we would like to reproduce the provisions of the Act which are subject matter of the present challenge: 3. Registrar and other officers.- (1) The State Government shall appoint a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of the Act is the executive head of the cooperative movement which is intended to provide strength to the weaker sections of the community and is based on contribution through an open door policy. The Registrar is supposed to be the friend philosopher and guide and is required to see that the cooperative movement remains within prescribed limit. Sections 8 and 9 of the Act empower the Registrar to deal with the question of registration of a society. Under Section 10 of the Act, the Registrar has the power to classify the societies whereas Sections 11 and 12 of the Act deal with the power of Registrar with regard to amendment of bye-laws of the society. Section 18 empowers the Registrar to direct cancellation of registration of the society whereas under Section 18-A of the Act the Registrar can order de-registration of societies. Under Section 19-A of the Act, the Registrar may declare a person ineligible for membership of the society. Section 49-D of the Act deals with the power of the Registrar to give direction to the society to make Regulations. Section 53 of the Act empowers the Registrar to order suppression of the committee of the society in the contingenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the Bombay High Court in the case of Maharashtra Co-operative Courts Bar Association, Bombay and Ors. v. State of Maharashtra and Ors. 1990 Mah. L.J. 1064 has held that presiding officer of the cooperative court form cadre of subordinate courts as understood by Article 234 of the Constitution of India and State Government will have to take action to make appointment of these presiding officer in accordance with the direction contained in the said Article. In other words, it would mean that they can be selected by the Maharashtra Public Service Commission in consultation with the High Court. On that basis, the Petitioner pleads that State Government should not be given right to appoint any person as the Registrar etc. The Petitioner also went to the extent of describing these functionaries as the Cooperative Courts while discharging these duties through no such nomenclature is provided in the Act. He also submitted that in the State of M.P. functioning of these authorities was dismal, creating unfortunate and painful situation which was because the reason that persons appointed were blissful ignorant about the legal aspects. They were not functioning independently a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal unless he had been a Judge of a High Court or has held the office of a District Judge for not less than 5 years. Likewise, in respect of two Members of the Tribunal, Section 77(3)(b) contains a clear stipulation that one of them shall be an officer of Cooperative Department not below the rank of Joint Registrar, and the other shall be non-official closely associated with the cooperative movement or an Advocate or a pleader having practical experience for a period of not less than 15 years. With such a composition of the Tribunal, which is given power to hear appeals from the orders of the Registrar or his nominee, the apprehension of the Petitioner is adequately taken care of. We find that in addition to hearing the appeals from the orders of the Registrar, the Tribunal is also given power of revision and review. Similar schemes are provided in various other statutes wherein at the first ladder of the lis, powers are given to the administrative authorities to decide the same with provision for appeal against those orders. One example is Public Premises (Eviction of Unauthorized Occupants) Act 1971. In such cases the orders are passed by the Estate Officer and the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, other members can be a person with legal background. In nutshell, the tribunal consists of a former Judge as Chairman, one member who has held high office of Joint Registrar in the department and the other member either with the legal background or a person closely associated with cooperative movement. We, thus, do not find any fault with this provision as well. 15. In so far as Section 77(6) of the Act is concerned, it gives power to the State Government to terminate the appointment of the Chairman or a member if, in its opinion, such Chairman or Member is unable or unfit to perform the duty of his office. Thus, this power is given only when the State Government forms such an opinion about the inability or unfitness of such Chairman or Member to perform the duties of his office. This opinion may be subjective but has to be based on objective consideration/material on record. Since the State Government is the appointing authority, power to remove has to necessarily vest in the appointing authority. It is not an omnibus or unguided/uncanalyzed power conferred upon the Government. Further, the decision is always subject to judicial review. In a given case if the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts mentioned in Section 151 of the Code of Civil Procedure. In such a case there is no difficulty in holding that in adjudicating upon a dispute referred under Section 48 of the Act, the Registrar is to all intents and purposes, a Court discharging the same functions and duties in the same manner as a Court of law is expected to do. However, it does not necessarily follow from that the Registrar exercising such powers has to be necessarily a person with judicial/legal background. That was not even an issue in the aforesaid case. 17. In so far as judgment in the case of Mukri Gopalan is concerned, the Court therein discussed the power of the appellate authority constituted under Section 18 under Kerala Building Lease Rent Control Act. In the instant case, the appellate authority is the tribunal which is headed by a judicial person. The judgment in R. Gandhi (supra) again pertains to the National Company Law Tribunal and the law stated therein, emphasizing the need for person with judicial background, is in the context of a tribunal. Same is the position in the matter of Gujarat Revenue Tribunal Bar Association case (supra). In so far as Namit Sharma (supra) is concerned, much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the interests indicated in the Act. It was therefore insisted that experienced suitable persons should be appointed who are able to perform their functions efficiently and effectively. In this behalf certain directions were given and one of the directions was that while making recommendation for appointment of CIC and Information Commissioners the Selection Committee must mention against name of each candidate recommended the facts to indicate his eminence in public life (which is the requirement of the provision of that Act), his knowledge and experience in the particular field and these facts must be accessible to the citizens as part of their right to information under that Act, after the appointment is made. 20. Taking clue from the aforesaid directions, and having gone through the similar dismal state of affairs expressed by the Petitioner in the instant petition about the functioning of the cooperative societies, we direct that the State Government shall, keeping in mind the objective of the Act, the functions which the Registrar, Joint Registrar etc. are required to perform and commensurate with those, appointment of suitable persons shall be made. Likewise, having re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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