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Abdul Aziz Dar Vs. Dy. Director Horticulture and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petn. No. 121 of 1981
Judge
Reported inAIR1981J& K85
ActsJammu and Kashmir Co-operative Societies Act, 1960 - Section 29(1) and 29(4); ;Evidence Act, 1872 - Section 114; ;Constitution of India - Article 133
AppellantAbdul Aziz Dar
RespondentDy. Director Horticulture and ors.
Advocates: B.A. Bashir, Adv.
DispositionPetition dismissed
Excerpt:
- .....by the registrar. accordingly we are unable to read in sub-section (4) the requirement that the financinginstitution should be consulted before the action for supersession is initiated. the argument to the contrary of the learned counsel for the petitioner must fail4. the result, therefore, is that there is no merit in this petition. it is dismissed accordingly.5. 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.....
Judgment:
ORDER

1. 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of an order passed by the Deputy Director Horticulture acting as Registrar, Co-operative Societies, whereby he has superseded the petitioner's society under Section 29 of the J. & K. Co-operative Societies Act, 1960.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.

2. 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.

3. 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 financinginstitution should be consulted before the action for supersession is initiated. The argument to the contrary of the learned counsel for the petitioner must fail

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

5. 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.


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