Amrita Sinha DECISION
Amrita Sinha, J.
1. The petitioner No. 1 is a registered Cooperative Society and the petitioner No. 2 claims to be its Secretary. There are 54 members of the Society. The private respondent is one of the members of the said Society.
2. The petitioners are aggrieved by the issuance of memo being Nos. 2555/1(2)/1-1212/76 dated 10th June 2019 issued by the Joint Registrar of Co-operative Societies and 541/1(4) dated 30th July, 2019 issued by the Deputy Registrar of Co-operative Societies, Kolkata Metropolitan Area Housing Cell.
3. By the memo dated 10th June 2019 the Joint Registrar requested the Deputy Registrar to cause an enquiry into the affairs of the Society, in general, as per Section 100 of the Co-operative Societies Act, 2006 (herein after 'the Act'). By the memo dated 30th July 2019 the Deputy Registrar has invoked the provision of Section 100(1) of the Act and entrusted the Cooperative Development Officer to cause an inquiry into the affairs of the Society with special emphasis on the complaint lodged by the private respondent.
4. The primary allegation of the petitioner is that according to Section 100(1) of the Act the Registrar may, at any time, of his own motion, hold by himself or by any person authorized by him an inquiry into the affairs of any cooperative society. The petitioners submit that according to the aforesaid provision the Registrar could have held an inquiry on his own motion and not on the basis of any complaint lodged by an applicant not specified in the said Section.
5. The petitioners are further aggrieved with the appointment of the inquiry officer. According to the petitioners the Joint Registrar had entrusted the Deputy Registrar to cause an inquiry into the affairs of the said Society. The Deputy Registrar could not have further delegated the inquiry upon the Cooperative Development Officer inasmuch as the same amounts to sub-delegation which is not permissible according to the aforesaid provision.
6. The petitioners submit that though according to Section 4(56) of the Act Registrar includes the Deputy Registrar and the Joint Registrar, even then, since the Joint Registrar had already entrusted the inquiry upon the Deputy Registrar accordingly the Deputy Registrar ought not to have further sub-delegated the inquiry to the Cooperative Development Officer.
7. It has been pointed out that there is a provision for raising dispute before the Registrar and the law provides for a forum for settlement of the disputes raised before the Registrar. Instead of invoking the said provision the Deputy Registrar erroneously invoked the provision under Section 100(1) of the Act for causing the inquiry.
8. The petitioners rely upon the judgment delivered by the High Court of Allahabad in the matter of Dalel Singh vs. Hony. Secretary, Cooperative Union Ltd. UP Lucknow & Ors. reported in MANU/UP/0019/1956 : AIR 1956 All 43 wherein the court held that the Registrar is given certain powers of general supervision and he has power either of his own motion or on the request of the Collector or a majority of the committee or of not less than 1/3rd of the members to hold an inquiry or direct some person authorised by him to hold inquiry in the constitution, working and financial condition of the society. The power can only be exercised in cases where the entire working of the society is defective and this power has been given to protect the interest of the shareholders and those who have to deal with the Society. The court held that the Registrar did not have the power to interfere in the day to day administration of the Society.
9. It has been submitted that the complaint that has been filed by the private respondent relates to his personal grievance and it does not contain any matter concerning the affairs of the Society. It has been submitted that there are fifty four members in the Society, but it is only the private respondent who has raised an objection. The said objection can, at best, be considered as a private grievance and inquiry under Section 100(1) of the Act is not required for redressal of the same.
10. The petitioner further relies upon a judgment delivered by a learned single Judge of this court on 16th August, 2018 in WP 14855 (W) of 2018 reported in 2018 SCC Online Cal 12041 wherein it has been held that the court shall not interpret any provision of law which would otherwise frustrate the legislative intent or render such provision completely otiose. The court should lean towards upholding the workability of the said provision. It further held that the expression "shall" or "may" are interchangeable and may sometimes convey a different meaning which is grammatically correct. It has been submitted that under the provision of Section 100(1) the terms "may" ought to be read as "shall". It has been contended that the Registrar shall on his own motion hold by himself or by any authorized person an inquiry into the affairs of any cooperative Society. The Registrar under no circumstances can sub-delegate the said power. The same will be contrary to law.
11. The petitioner also relies upon the judgment delivered by this court in the matter of Maniruddin Bepari vs. Chairman of the Municipal Commissions, Dhaka reported in MANU/WB/0316/1935 to highlight the proposition that it is fundamental principle of law that the statutory authority has no power to do anything unless those powers are conferred on it by the statute which creates it. It has been submitted that the Registrar is a creature of the statute. It is bound by the provisions of the statute and not act contrary to the same.
12. The petitioner prays for issuance of a writ of mandamus for setting aside the impugned memos dated 10th June, 2019 and 30th July, 2019.
13. The learned advocate appearing on behalf of the private respondent raises a preliminary objection with regard to the maintainability of the writ petition at the instance of the petitioners. It has been submitted that the petitioner No. 1 does not have a legally elected body to represent it. The petitioner No. 2 is not the competent person to represent the petitioner No. 1. The election of the Society was not conducted in accordance with law and accordingly the petitioner No. 2 does not have right and/or authority to represent the petitioner No. 1.
14. It has been submitted that no order can be passed in the instant case as the writ petition itself is not maintainable at the instance of the petitioners.
15. The learned advocate appearing on behalf of the State respondents submits that the Registrar has the power and the authority to cause an inquiry into the affairs of any cooperative society by himself or by any person authorized by him. It has been submitted that according to Section 4(56) the Registrar includes the Joint Registrar and the Deputy Registrar. In the instant case the Joint Registrar forwarded the complaint of the private respondent to the Deputy Registrar to cause an inquiry. The Deputy Registrar and the Joint Registrar both being the 'Registrars' can depute an authorized person to conduct the inquiry. Due to administrative convenience the Registrar forwards the applications to the Joint Registrar under whose administrative control and supervision the Society functions. The Joint Registrar in a routine manner forwards the same to the Deputy Registrar having administrative control and supervision of the Society, who thereafter authorizes a responsible officer to cause an inquiry into the affairs of the Society.
16. It has further been submitted that since both the Joint Registrar and the Deputy Registrar will be covered by the term "Registrar" accordingly there is no illegality on the part of any of the Registrars in appointment of the Cooperative Development Officer to inquire into the affairs of the Society.
17. It has been submitted that it is practically neither possible nor feasible for the Registrar to have personal information about the thousands of Societies in the State. For proper administration of the Societies the same are grouped and placed under a particular Joint Registrar who divides the Societies into further sub-groups and place the same under the Deputy Registrar who engages responsible officers to act in accordance with the provisions laid down in the Act.
18. It has been argued that the expression "of his own motion" will include acting on the basis of information received from any member of a Society alleging mismanagement. It has been submitted that assuming that the Section has been misquoted in the impugned memo the same will not make the notice bad in law. The notice will still be effective for the purpose of conducting the inquiry in accordance with the Act.
19. I have heard the submissions of all the parties.
20. The matter is at a very preliminary stage. The issue raised in the instant writ petition is required to be decided upon affording an opportunity to the respondents to file their respective oppositions.
21. Whether the petitioner being a single individual member of the Society can be treated to be an applicant or whether the action of the Registrar in taking steps for conducting an inquiry on the basis of an application made by a member of the Society will be in accordance with the provision of Section 100(1) will be decided at the time of final hearing of the writ petition.
22. The respondents are directed to file their affidavit in opposition within a period of four weeks after reopening the court after the ensuing Puja Vacation. Reply, if any, be filed within a fortnight thereafter.
23. Prima facie it appears that the Registrar is competent to hold an inquiry into the affairs of any Society. The same may be on the basis of an application or on his own motion.
24. Section 100(2) of the Act contains a list of applicants who can apply before the Registrar for an inquiry. The proviso to the said Section mentions that the Registrar may, before initiating any action for inquiry satisfy himself whether the signatures of the applicants are genuine and whether the claim of the applicants is supported by proper documents.
25. The power to conduct an inquiry remains vested with the Registrar is not in dispute. The Statute provides the power to the Registrar to hold inquiry into the affairs of any co-operative society at any time. The idea is to ensure proper administration and management of a co-operative Society. None of the parties is likely to be prejudiced if the inquiry is held in accordance with law.
26. As the Registrar has applied his mind on the application filed by the private respondent and have opined that the issues raised therein are of serious nature relating to mismanagement of the Society, accordingly, I am not inclined to pass any order staying the operation of the impugned memos dated 6th June, 2019 and 30th July, 2019. The inquiry officer will be at liberty to proceed with the inquiry strictly in accordance with law and prepare the inquiry report. The inquiry officer is restrained from publishing the said report or taking any steps in furtherance to the said report without the leave of the court. The inquiry officer shall file the inquiry report, before the court, in a sealed cover, on the next date of hearing.
27. It is made clear that the inquiry officer shall conduct the inquiry upon prior notice to the petitioners as well as the private respondent herein.
28. Liberty to mention.
29. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties on compliance of usual legal formalities.
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