Neutral Citation No. - 2025:AHC:115912-DB Court No. - 29 Case :- WRIT - C No. - 22790 of 2025 Petitioner :- Navneet Kumar Sharma Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Chandan Bhatt,Upendra Kumar Pandey Counsel for Respondent :- C.S.C.,Vineet Pandey Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Prashant Kumar,J. 1. Heard Shri U.K. Pandey, learned counsel for the petitioner; Ms. Uttara Bahuguna, learned Additional Chief Standing Counsel for the State respondent no.1 and Shri Vineet Pandey, Advocate, who had entered appearance on behalf of U.P. Awas Evam Vikas Parishad (respondent nos.2, 3 and 5). 2. The instant writ petition has been preferred challenging the impugned orders dated 30.04.2025 and 03.07.2025 passed by the Additional Housing Commissioner/Additional Registrar, U.P. Avas Evam Vikas Parishad (Cooperative Department), Lucknow (respondent no.3), whereby in purported exercise of power under Section 38 (1) of U.P. Cooperative Societies Act, 1965, he has directed the Committee of Management of Maya Nagar Sahkari Awas Samiti Limited, Moradabad to remove the petitioner and to report him within one month's time. 3. It appears from the record that "Maya Nagar Sahkari Awas Samiti Limited, Moradabad" (in short, the Society) is a duly registered Cooperative Housing Society since 03.01.1975. The object of the Society is to provide dwelling units to its members as per the provisions contained in U.P. Cooperative Societies Act, 1965 (in short, the Act, 1965) and Rules & Bye-laws framed thereunder. The petitioner claims to be Secretary of the Society since 11.02.2023. On receipt of a complaint made by one Shishpal, an enquiry was conducted by Cooperative Officer (Housing), Moradabad and the report was submitted to the respondent no.3 on 18.01.2025. Consequently, the respondent no.3, exercising powers under Section 38 (1) of the Act, 1965, has passed the order on 30.04.2025. 4. Learned counsel for the petitioner vehemently contended that the complaint was filed by a member of the Society namely Shishpal on false and frivolous allegation and he is inclined to grab the precious land of the Society. The complaint was entertained and the ex-party enquiry was held. Taking note of the said enquiry, in most arbitrary manner the respondent no.3 has passed the order dated 30.04.2025 in purported exercise of powers under Section 38 (1) of the Act, 1965, which is impugned in the writ petition. 5. Learned counsel for the petitioner in support of his submission has placed reliance on the judgement passed by the Division Bench of this Court in Committee of Management, the Meerut Sahkari Avas Samiti and others vs. State of U.P. and others 2024 (1) ADJ 371. He submits that the powers under Section 38 (1) of the Act, 1965 is with the general body of the Society and not the Committee of Management. The general body of the Society gets invested with the power under Section 38 (1) only when direction is issued by the Registrar to remove any officer or to remove and disqualify him from holding any office under the Society. He submits that no doubt, upon being so directed by the Registrar, the Society is obliged to follow the direction of the Registrar. The respondent no.3 in most arbitrary manner has passed the impugned order dated 30.04.2025, which is also not happily worded. He submits that the interim Committee is not competent and only the general body of the Society is competent to take a decision with regard to removal of the petitioner. 6. Per contra, learned counsel for the respondents opposed the writ petition and submit that in the present case, the impugned order dated 30.04.2025 may not be very happily worded but the same has been passed in exercise of powers under Section 38 (1) of the Act, 1965. No other interpretation may be derived as the direction was for the Committee of Management to convene the meeting of the Society to consider the mandate given by the respondent no.3. Even after finalization of the proceeding under Section 38 (1) and 38 (2) of the Act, 1965 the petitioner has also an alternative remedy of challenging the same before the Tribunal in view of provision contained under Section 98 (1) (d) of the Act, 1965. They submit that the impugned order is fully sustainable in the eyes of law and warrants no interference in the writ jurisdiction. As such, the writ petition is liable to be dismissed. 7. We have heard rival submissions and perused the record. 8. In Committee of Management, the Meerut Sahkari Avas Samiti and others vs. State of U.P. and others (supra) the Division Bench had considered as to whether approval/sanction of Registrar is required by the Committee of Management under Section 38 (1) for proceeding under Rule 454 and held as under: "38. A bare perusal of section 38 of U.P. Act, 1965 shows that Registrar, if forms an opinion, that an "Officer" of a Co-operative Society has contravened or omitted to comply with any provision of U.P. Act, 1965 or Rules framed thereunder or Bye-laws of the Society or has forfeited his right to hold office, he may call upon the Society to remove such officer within a specified period from the office. If necessary, Registrar shall also call upon the Society to disqualify such "Officer" from holding any office under that Society for a period not exceeding three years. When such direction is issued by Registrar, the Society is under an obligation to pass such order as is necessary but before passing such order principles of natural justice shall be complied with and the "Officer" concerned shall be given an opportunity of hearing by the Society. 39. Section 38 (1)........contemplates a direction from Registrar to Society concerned to do the needful when the conditions, as noticed above, are satisfied that the "Officer" concerned has not acted in accordance with Statutes or otherwise has forfeited his right to hold office and it would then be an obligation of the Society to comply the said direction. 41.........when Society acts under sub-section (1) of Section 38, it gets jurisdiction from an order/direction issued by Registrar himself to take such action. This is a supervisory/administrative control of Registrar over the Management of Co-operative Society so that an "Officer" of Society, if not functioning within the four corners of the Statute or otherwise, has forfeited his right to hold office, such person shall not be allowed to continue to hold office, and, at the first instance, Society itself should remove him and if Society fails, then it shall be done by Registrar himself." 9. We find that the power under Section 38 (1) of the Act, 1965 is with the general body of the Society. In case of removal of any officer or to remove and disqualify him from holding any officer under the Society, the general body of the Society gets invested with the power under Section 38 (1). Once a direction is issued by the Registrar, the Society is having no other discretion and has to follow the direction of the Registrar. No doubt, on the principle of natural justice the Society shall afford opportunity of hearing to the officer concerned and pass such order as it may deem fit. In case of failure of the Society to take action under sub-section (1), the Registrar has also discretion, after affording opportunity of being heard to the officer and for reasons to be recorded, remove and disqualify the officer for a period not exceeding three years. The Registrar has an ample discretion to remove or not to remove the officer while exercising powers under sub-section (2) of Section 38 of the Act, 1965. 10. In the instant matter, we also take note that the impugned order, which has been passed by the respondent no.3, may not be very happily worded but he inheres the powers and he has directed the Society to proceed accordingly. At this stage, we do not find any infirmity or illegality in the impugned order dated 30.04.2025 as the respondent no.3 has exercised powers under Section 38 (1) of the Act, 1965. Nothing is brought on record to indicate the fate of the proceedings, which were taken by the Society in response to the impugned order dated 30.04.2025. The record reflects that subsequently, the respondent no.3 had issued notice to the petitioner on 03.07.2025 in purported exercise of powers under Section 38 (2) of the Act, 1965 and fixed a date for hearing on 17.07.2025. As the said date has already been expired and in case proceeding has not been finalized till date, we expect that the respondent no.3 must adhere the principle of natural justice and afford an opportunity of hearing to the petitioner before finalisation of the proceeding under Section 38 (2) of the Act, 1965. 11. We further find that the petitioner has also taken an objection that the alleged enquiry report had not been supplied to the petitioner and the ex-parte enquiry report dated 18.1.2025 has not been supplied to the petitioner. Once the respondent no.3 has already asked the petitioner through a letter dated 03.07.2025 and had already accorded time to the petitioner to appear and put his case, then we do not find any infirmity in the impugned communication dated 03.07.2025, which warrants any interference. At the same time, we observe that the proceeding under Section 38 (2) of the Act, 1965 must be finalized in accordance with law after giving an opportunity of hearing to the petitioner. 12. With the aforesaid observations, the instant writ petition stands disposed of. Order Date :- 17.7.2025 S.P./RKP Digitally signed by :- RAKESH KUMAR PATEL High Court of Judicature at Allahabad