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1992 DIGILAW 1368 (ALL)

Chandra Shekher Pandey v. State Government of Uttar Pradesh

1992-10-14

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

body1992
JUDGMENT D. P. S. Chauhan, J. 1. The petitioner, who alleges himself to be one of the members of the Committee of Management of the District Cooperative Bank Limited, Basti (for brevity, hereinafter referred to as 'the Bank') has invoked the jurisdiction of this Court under Article 226 of the Constitution of India impeaching the Notification No. 386/XII-C-1-92 dated 4-4-1992, seeking relief for its quashing with a direction to the respondents for proceeding according to law. 2. The Bank is a Central Cooperative Society deemed to have been registered under the U. P. Cooperative Societies Act, 1965 (for brevity, hereinafter referred to as 'the Act'). Its ordinary members is open to the Primary Cooperative Societies. Individuals are not its ordinary members. A Deposit Insurance Corporation was established under the Deposit Insurance Corporation Act, 1961 (Act No. 47 of 1961) for insuring all deposits in commercial banks including the State Bank of India and its subsidiary banks. The aforesaid Act was amended by the Deposit Insurance Corporation (Amendment) Act, 1968 (Act No. 56 of 1968) whereby the cooperative banks were also included in its fold. Under section 2 (dd), cooperative bank was defined as- "cooperative bank" means a State co-operative bank, a Central Cooperative bank and a Primary cooperative bank;" Cooperative Banks, as defined in the aforesaid Act, were also allowed to be registered under section 10/11 of the aforesaid Act and, on being registered, the same became insured bank. The insured bank is defined as- "insured bank" means a banking company or an eligible cooperative bank for the time being registered under the provisions of this Act and includes for the purposes of sections 116, 17, 18 and 21- (i) a banking company referred to in clause (a) of clause (b) of section 13, or (ii) a cooperative bank referred to in clause (a) or clause (b) of section 13-C, the registration whereof has been cancelled under section 13, or as the case may be under section 13-C;" 3. Section 13-A of the aforesaid Act, which is as extracted below, lays down the condition that no cooperative bank shall be registered under the aforesaid Act unless it is an eligible cooperative bank :- "13. Section 13-A of the aforesaid Act, which is as extracted below, lays down the condition that no cooperative bank shall be registered under the aforesaid Act unless it is an eligible cooperative bank :- "13. A Registration of cooperative banks.- (1) No cooperative bank shall be registered under this section unless It is an eligible cooperative bank (2) Subject as aforesaid- (a) the Corporation shall register every existing cooperative bank as an insured bank before the expiry of thirty days next following the commencement of the Deposit Insurance Corporation (Amendment) Act, 1968 ; (b) the Corporation shall register as an insured bank- (i) every new cooperative bank other than a primary credit society becoming a primary cooperative bank after the commencement of the Deposit Insurance Corporation (Amendment) Act, 1968 as soon as may be after it is granted a licence under section 22 of the Banking Regulation Act, 1949 ; (ii) a primary credit society becoming a primary cooperative bank after such commencement within three months of its having made an application for a licence under the said section : Provided that a bank referred to in clause (b) shall be not so registered If it has been informed by notice in writing by the Reserve Bank that such a licence cannot be granted to it " 4. "Eligible cooperative bank" is defined in section 2 (gg) of the aforesaid Aot as- "(2) (gg)." eligible co-operative bank" means a cooperative bank the law for the time being governing which provides that- (i) an order for the winding up or an order sanctioning a scheme of compromise or arrangement or of amalgamation or reconstruction of the bank may be made only with the previous sanction in writing of the Reserve Bank ; (ii) an order for the winding up of the bank shall be made if so required by the Reserve Bank in the circumstances referred to in section 13-D; (iii) if so required by the Reserve Bank in the public interest or for preventing the affairs of the bank being conducted in a manner detrimental to the interest of the depositors or for securing the proper management of the bank, an order shall be made for the supersession of the committee of management or other managing body (by whatever name called) of the bank and the appointment of an administrator therefore the such period or periods not exceeding five years in the aggregate as may from time to time be specified by the Reserve Bank ; (iv) an order for the winding up of the bank or an order sanctioning a scheme of compromise or arrangement or of amalgamation or of reconstruction or an order for the supersession of the committee of management or other managing body (by whatever name called) of the bank and the appointment of an administrator therefor made with the previous sanction in writing or on the requisition of the Reserve Bank shall not be liable to be called in question in any manner ; and (v) the liquidator or the Insured bank or the transferee bank, as the case may be, shall be under an obligation to repay the Corporation in the circumstances, to the extent and in the manner referred to in section 21;" In view of this, Chapter XI-A was added to the Act. Under section 90-A of the Act, "insured cooperative bank" was defined to mean a cooperative bank insured under the Deposit Insurance Corporation Act, 1961 (Act No. 47 of 1961), and section 90-B provided for special provisions applicable to insured cooperative banks. Under section 90-A of the Act, "insured cooperative bank" was defined to mean a cooperative bank insured under the Deposit Insurance Corporation Act, 1961 (Act No. 47 of 1961), and section 90-B provided for special provisions applicable to insured cooperative banks. Section 90-B is as extracted below ;- "90-B. Special provisions applicable to insured cooperative banks.- Notwithstanding anything contained in this Act, the following provisions shall apply to every insured cooperative bank, namely.- (i) an order sanctioning a scheme or resolution for the amalgamation or merger or division or winding up of an insured cooperative bank may be made by the Registrar only with the previous sanction in writing of the Reserve Bank ; (ii) an order for the winding up of an insured cooperative bank shall be made under the provisions of this Act if so required by the Reserve Bank in the circumstances referred to in station 13-D of the said Act ; (iii) if the Reserve Bank is of opinion that it is necessary so to do in the public interest or for preventing the affairs of an insured cooperative bank being conducted in a manner detrimental to the interest of the depositors or for securing the proper management of such cooperative bank, is may require the Registrar to pass an order for supersession of the Committee of Management or other managing body (by whatever name called) of such cooperative bank and to appoint an administrator therefor for such period or periods not exceeding five years in the aggregate as may, from time to time, be specified by the Reserve Bank; and the Registrar shall pass an order accordingly and the remaining provisions of sections 35 and 36 shall apply in relation to such an order as if it were an order made under section 35, but the requirements of that section to afford the Committee of Management an opportunity of being heard and to obtain the opinion of the general body of the society shall not be applicable ; (iv) in the event of the Chairman and members of the Committee of Management of an insured cooperative bank vacating their respective offices under sub-section (1) or sub-section (2) of section 35-A, the Reserve Bank may require the Registrar to make such arrangements as it thinks proper for the management of the affairs of such bank and the Registrar shall pass an order accordingly and the remaining provisions of section 35- A shall apply In relation to such an order as if it were an order made under that section ; (v) an order sanctioning a scheme of or the resolution for amalgamation or merger or the division or winding up of an insured cooperative bank or of the supersession of the Committee of Management or other managing bodies (by whatever name called) of such bank and the appointment of an administrator thereof made with the previous sanction in writing or on the requisiti on of the Reserve Bank shall not be called in question in any manner ; and (vi) the liquidator or the insured cooperative bank or the transferee bank, at the case may be, shall be under an obligation to repay to the Deposit Insurance Corporation the sums mentioned in section 21 of the said Act in the circumstance and to the extent and in the manner referred to in that section." 5. Section 113 of the Act. which reads as under empowers the State Government for granting exemption to any cooperative society or class of societies from the provisions of the Act:- "113. Power to exempt class of societies.- The State Government may, by general or special order to be published In Gazettee, exempt any cooperative society or any class of societies from any of the provisions of this Act or may direct that such provisions shall apply to such society or class of societies with such modifications as may be specified in the order." 6. The State Government, in exercise of powers under Section 113 of the Act, issued the impeached notification No. 386/XII- C-I-92 dated 4-4-1992, which reads as under ;- Notification No. 386/12-C-1-92 dated 4 April, 1992-In exercise of the powers under Section 113 of the Uttar Pradesh Cooperative Societies Act, 1965 (U. P. Act No. XI of 1966), the Governor is pleased to direct that the provisions of Section 90-B of the said Act shall apply to the District Cooperative Bank Limited, Azamgarh, Ballia, Basti, Agra, Mainpuri, Mirzapur and Kanpur with the modification that no previous sanction in writing of Reserve Bank Is required for the division or amalgamation or merger or winding up of the said Banks." This notification is the subject matter of challenge in the present petition. Heard learned counsel for the petitioner, Sri Fauzdar Rai. He has challenged the said notification on various grounds. Enumeration of the same is not necessary as the petition is not maintainable at the instance of the petitioner, who is only a member of the Committee of Management of the Bank and also on the ground that the petition does not disclose any cause of action for invoking the jurisdiction of this Court. It has not been disclosed as to which legal right of the petitioner has been invaded and in what manner. He has not disclosed as to how he is injured by the impeached notification, in the petition, the petitioner has not stated regarding the position of the bank as to whether it is registered under the Deposit Insurance Corporation Act or not. 7. The petitioner himself is not an ordinary member of the bank. He has not disclosed as to how he is injured by the impeached notification, in the petition, the petitioner has not stated regarding the position of the bank as to whether it is registered under the Deposit Insurance Corporation Act or not. 7. The petitioner himself is not an ordinary member of the bank. He is a delegate of the primary member society of the bank to the general body of the bank and, in this capacity, he was elected as a member of the Committee of Management of the bank. The bank is a body corporate registered under the Act and is a corporation. The impeached notification does not relate to the petitioner but relates to the bank. Neither the Committee of Management, is the executive body of the bank, nor the General body of the bank has passed any resolution for giving a challenge to the said notification. The corporations and the body aggregate act through voice vote. In the absence of any decision either by the Committee of Management or by the General Body of the bank, the petitioner, individually. In the capacity as a member of the Committee of Management, cannot maintain the writ petition. 8. Learned counsel for the petitioner has accepted that the petitioner has approached this Court in the capacity as a member of the Committee of Management. It is not even the ease of the petitioner that he is one of the depositors of the bank. In Daman Singh v. State of (Punjab, AIR 1985 SC 973 , the Supreme Court held that- "Once a person becomes a member of a cooperative society, he loses bis individuality qua the society and he has no independent rights except those given to him by the statute and the by-laws. He must act and speak through the society or rather, the society alone can act and speak for him qua rights and duties of the society as a body." 9. Learned counsel for the petitioner relied upon a case of R. C. Cooper v. Union of India, AIR 1970 SC 564 The position in that case was different. He must act and speak through the society or rather, the society alone can act and speak for him qua rights and duties of the society as a body." 9. Learned counsel for the petitioner relied upon a case of R. C. Cooper v. Union of India, AIR 1970 SC 564 The position in that case was different. In that case, the Supreme Court found that the petitioner was the share-holder of the bank and on that basis the petition was held to be maintainable In the present petition, the petitioner is not a share-holder in the bank The share-holder is the primary society of which he is only a delegate to the general body of the bank. The primary society which is a member of the bank and share-holder in the bank, has not come forward. The said case has no application. 10. In view of the above, it is the society, i. e. the bank, which could act and speak for its members qua the rights and duties of the bank as a body corporate. The bank has not come forward. In these circumstances, the petitioner has no locus standi to maintain the petition in his capacity as a member of the Committee of Management of the bank, which is a body aggregate, without there being a resolution of the Committee of Management. The next question is regarding cause of action. It also goes against the petitioner. The petitioner in the petition, has not stated or pleaded as to how he is adversely affected by issuance of the impeached notification. He has not stated that in view of the provisions of Section 90-B, exempting the society from the requirement of sanction in writing of the State Bank of India in the matter of amalgamation, merger, division or winding up of the bank has affected adversely. So far no action has been taken against the bank consequent upon the impeached notification. 11. Learned counsel for the petitioner submitted that though no Injury consequent upon the issuance of the said notification has been caused to the Bank or to the petitioner, but he has got every right to approach this Court to challenge the validity of the notification. The submission is unfounded. The Courts of law are for seeking remedy and the remedy can be given only when a person is adversely affected by an Act. The submission is unfounded. The Courts of law are for seeking remedy and the remedy can be given only when a person is adversely affected by an Act. He cannot come to the Court without there being any direct threat or injury. The validity of a law can be the subject matter when it effects some body and, prior to it, the same remains the matter of academic interest and cannot be challenged in a court of law. If an act is void, it will remain void and the question of declaration of its being void will arise only when some body is adversely affected and thereafter he could approach the court for protection of his right. It is not the province of this Court to look into the validity or legality of any statutory enactment or notification unless the same causes injury to the person seeking protection of the Court, otherwise it would be a supervising power over the legislative power. It is a settled proposition of law that the courts of law are not for the purpose of academic exercise but are for the purpose of granting relief to the affected persons. In A. K. Roy v. Union of India, AIR 1982 SC 710 , the Supreme Court observed as under :- "......All the same, the position is firmly established in the field of constitutional adjudication that the Court will decide no more than needs to be decided in any particular case. Abstract questions present interesting challenges, but it is for scholars and text-book writers to unravel their mystique. It is not for the Courts to decide questions which are but of academic importance." 12. Further Article 226 (1) of: the Constitution of India which is as extracted below, speaks for issuance of writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose ;- "226 (1). Further Article 226 (1) of: the Constitution of India which is as extracted below, speaks for issuance of writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose ;- "226 (1). Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority Including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." It contemplates infringement of a fundamental or a legal right of a person who, aggrieved thereby, is entitled to approach under Article 226 of the Constitution of India for redress. For the reasons stated above, the writ petition is not maintainable at the instance of the petitioner and also being pre-mature is dismissed in limine without expressing any opinion regarding legality or otherwise of the impeached notification. It is a question left open for challenge by the appropriate person at the appropriate stage. No order as to costs. Petition dismissed.