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Allahabad High Court · body

1989 DIGILAW 156 (ALL)

RAM PRAKASH v. STATE OF UTTAR PRADESH

1989-02-13

D.P.S.CHAUHAN, V.N.KHARE

body1989
V. N. KHARE, J. ( 1 ) THE present petition is filed by 6 persons claiming the relief for the issuance of writ of mandamus directing the respondents for allowing the petitioners to continue as members of the Committee of Management of Zila Parishad Sahakari Sangh Ltd. Etah, also known as Distt. Co-operative Federation Ltd. Etah and also for issuance of direction to respondent No. 3 (Sub-Divisional Magistrate, Etah) for not holding election for six members of the Committee of Management in pursuance of the date fixed by the Registrar Co-operative Societies, U. P. , Luckoow. ( 2 ) THE District Co-operative Federation Etah (hereinafter referred to as Federation) is a Central Co-operative Society deemed to have been registered under the U. P. Co-operative Societies Act, 1965 (hereinafter referred to as the Act) and the Rules framed thereunder (hereinafter referred to as the rules ). The Management of the Federation as provided under Section 29 of the Act vests in a Committee known as Committee of Management, constituted in accordance with the provisions of the Act, Rules and Bye-laws. The elections in the Federation were due and they were scheduled to be held on the dates fixed by the Registrar Co-operative Societies, U. P. Before the election for the members of the Committee of Management chairman and Vice-chairman etc. of the Federation could take place, the state-Govenment in exercise of powers under sub-section (2) of Section 34 of the Act vide Notification No. 266 M/12-C-3-10185/88 dated 17th May, i988 nominated 9 members including the Chairman for the Committee of management of the Federation which order to come in to effect after the constitution of the Committee of Management. The election for the office of members of the Committee of Management of Federation took place on 21-6-88 and of the Chairman and Vice-Chairman took place on 22-6-l988. The Distt. Assistant Registrar, Co-operative Societies Etah under the authority of the Registrar Co-operative Societies, U. P. issued a notice on 20th June. 1988 fixing 29-6-1988 as the date on which lots to be drawn for the retirement of elected members for accommodating the nominees of the state Government unter the aforesaid order of nomination dated 17-5-1988. the lots were drawn on 29-6-88 and in the lots so drawn the petitioners ceased to be the members of the Committee of Management of the Federation. w. e. f 29-6-88. the lots were drawn on 29-6-88 and in the lots so drawn the petitioners ceased to be the members of the Committee of Management of the Federation. w. e. f 29-6-88. ( 3 ) THE said order of nomination of the State Government dated 17-5-88 was challenged by Sri Girish Chand and Sri Shiv Kumar Singh by way of writ petition No. 12771 of 1988. In. this petition no interim order was granted suspending the operation of the order of the State Government dated 17-5-88 passed under sub-section (2) of Section 34 of the Act, this Court passed an order requiring the standing counsel for filing counter affidavit. This writ Petition is still pending in this, Court, la the meantince an Ordinance No. 1 of 1989 known as U. P. Co-operative Societies (Amendment)ordinanee, 1989 was promulgated whereby the provisions of Section 34 of the Act were replaced by the following provision : this Ordinance was published in the U. P. Gazette, Extraordinary dated 7th Jan. , 1989 and came into effect from the said date. Thereafter the State government vide Notification No. 5930 C-3 10 (85) 88 dated 29-1-1989 cancelled the aforesaid order dated 17-5-88 passed under Section 43 (2) of the Act nominating 9 members for the Committee of Management of the federation. Consequent thereupon the Registrar Co-operative Societies, U. P. in exercise of powers under Rule 439 (2) of the Rules fixed the dates for election for 9 seats as 14-2-1989 and for the Chairman 15-2-1989. Consequent thereupon the Election Officer proceeded with the election programme issued by him. ( 4 ) THE petitioners have approached this Court at this stage seeking the relief as mentioned above. We have heard learned counsel for the petitioners and the learned standing counsel. ( 5 ) LEARNED counsel for the petitioners urged before us that the petitioners having been elected as members of the Committee of Management of the Federation on 21-6-88 are entitled for being revived as members of the Committee of Management in view of the fact that the order of the State government dated 17-5-88 whereby 9 members in the Committee of Management of the Federation were nominated, has been cancelled on 20-1-1989 and as such no fresh election could be held and the election which is going to be held is illegal and without any authority of law as there being no vacancy. The argument is devoid of merit. ( 6 ) SUBSEQUENT to the order of the State Government nominating 9 members in the Committee of Management of the Federation, the lots were drawn under the authority of the Registrar on 29-6-88 and consequent upon the draw of the lots, the petitioners ceased to remain as members of the committee of Management of the Federation. The relevant provision in this regard as stood prior to the promulgation of the Ordinance No. 1 of 1989 is as quoted hereinafter. Section 34 (5) : Where the State Government exercises its right of nomination under this section then" (A) in. . . . . . . . . . . . . . . . the nomination ; (b) in the case of nomination of members of the Committee of management, lots shall be drawn by or under the authority of the registrar on a date and at the time and place to be fixed by the registrar in that behalf (of which notice) shall be given to members of the Committee for the retirement of so many members of the Committee as may be necessary to accommodate the nominees of the State Government, and the members whose names are drawn by lots shall on the date of such drawal cease to be members of the Committee. "the position under the law is that after the drawal of lots the elected members of the Committee of Mangement who are excluded in the process of drawal of lots cease to remain the members of the Committee of Management from that date, as such w. e. f. 29-6-88 the petitioners ceased to remain the members of the Committee of Management of the Federation and, therefore, there was no question of their continuance as members of the Committee of Management from that date onward. By the newly substituted Section 34 by Ordinance No. 1 of 1989, the democratic constitution of the Co-operative society is recognized and the State Government is given the right to nominate only 2 members in the Committee of Management, one of whom to be the official. By the newly substituted Section 34 by Ordinance No. 1 of 1989, the democratic constitution of the Co-operative society is recognized and the State Government is given the right to nominate only 2 members in the Committee of Management, one of whom to be the official. Subsequent to the promulgation of the Ordinance, the State Government as such withdrew its order nominating 9 members of the Committee of management of the Federation as under Section 34, so substituted, there was no question of nominal on of more than 2 members in the Committee of management. ( 7 ) AFTER the petitioners have ceased to remain the members of the committee of Management, there was no question of their revival consequent upon the withdrawal of the said order of nomination dated 17-5-88 in view of the aforesaid Ordinance No. 1 of 1989. The seats have become vacant and, therefore, for these vacant seats a fresh election has to be held according to the provisions of the Act and the Rules. The petitioners who had ceased to exist cannot resuscitate back to the office, subsequent to the cancellation of the order of nomination dated 17-5-88, in view of the aforesaid Ordinance. After cessation, the petitioners have lost the right to remain as members of the Committee of Management and this lost right cannot be revived on account of cancellation of the order of nomination dated 17*5-88, which was done consequent upon Section 34 of the Act as substituted by the said Ordinance. ( 8 ) THE petitioners are, thus, not entitled to be revived as members of the Committee of Management of the Federation and the election for the office of the members of the Committee of Management of the Federation rightly has to be held. We find no infirmity or illegality in the holding of the fresh election for the vacancies which are created in the Committee of management consequent upon the withdrawal of order of nomination dated 17-5-88 on account of the substituted provisions of Section 34 of the Act, whereunder the State Government got the right to nominate only 2 members in the Committee of Management. ( 9 ) THIS petition has no merit and the petitioners are not entitled for any relief. The petition is accordingly dismissed in limine. Petition dismissed. .