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Himachal Pradesh High Court · body

1996 DIGILAW 273 (HP)

BALA RAM v. STATE OF H. P.

1996-12-24

LOKESHWAR SINGH PANTA, M.SRINIVASAN

body1996
JUDGMENT M. Srinivasan, C. J — The petitioner is challenging the validity of Rules 41 (1) (b) and 41 (2) (b) of the H. P. Co-operative Societies Rules, 1971. The petitioner was elected as a Director of the Board of Directors, Jogindra Central Co-operative Bank, which is the fourth respondent herein, in the year 1981 and was also elected as Chairman of the Bank later. 2. A proceeding was instituted on a complaint from one Nand Lal, in which the membership of the petitioner in Board of Directors was challenged, on the ground that the petitioner was convicted on 19-1-1959 by the Magistrate 1st Class, Arki, in a theft case under sections 380/457, I. P. C. Show cause notice was issued to the petitioner and after his reply, the petitioner was found to be not qualified in view of the aforesaid rules. The petitioner challenged the said order by a Revision before the Secretary (Cooperation). State of H P. The Secretary passed an order on 21-9-1985 dismissing the revision and holding that the petitioner was disqualified in view of the said rules Thereafter the petitioner has preferred this writ petition challenging the validity of the rules themselves as the factum of conviction is not in dispute, 3. The contention of the petitioner is that the rules are ultra vires the Constitution of India, inasmuch as, they violate the provisions of Article 14 of the Constitution The use of the expression ultra vires is not proper in this case as it is not the competence of the rule making authority which is challenged. The State Government which has framed the rules is certainly competent to make the rules by virtue of section 109, Clause (e) of the Himachal Pradesh Cooperative Societies Act The only question is whether the rules violate any provisions of the Constitution, 4. The first contention is that they are violative of provisions of Article 14 of the Constitution. The learned Counsel submits that the provisions in the Representation of Peoples Act, 1951 do not contain any permanent bar against any person who is convicted for an offence under the Indian Penal Code and the relevant provision restricts the bar only to a period of five years. The learned Counsel also refers the provisions of H. P. Panchayati Raj Act which also limits the period of disqualification to 5years. The learned Counsel also refers the provisions of H. P. Panchayati Raj Act which also limits the period of disqualification to 5years. Similarly the provision of H. P. Municipal Corporation Act, 1979 restricts the period of disqualification to 5 years. The provision of Cantonment Act, 1974 prescribes a period of three years as the period of disqualification. According to the learned Counsel when a person can become a Member of the Legislative assembly or a Member of the Parliament or a Member of the Municipal Corporation or a Member of the Cantonment Board, there is no justification for preventing him permanently from becoming a Member of the Co-operative Society. Thus, according to him the rule violates the principle of equality enshrined in Article 14 of the Constitution. We are unable to accept this contention, It cannot be said by any stretch of imagination that all the membership referred to above belong to one common class. The fact that the provision in the other Acts do not contain a permanent bar against the persons who are convicted for similar offences under the Indian Penal Code will not in any way prevent (he State Govt from making the rules under the Cooperative Societies Act, debarring any person who is convicted for an offence involving moral turpitude from becoming a member of the management committee It is well known that a Member of the Committee of any Co-operative Society may have to deal with the funds belonging to other parties In case of Cooperative Societies, the persons who are all Members of the Society should have faith and confidence in all the other Members and their interest must be protected by the Committee of the Management In such a situation, it is not unnatural or unusual for the Members of the Society to expect all the Members of the Committee of the Management to be above Board and without any blemish or black mark in their life, Probably that is the reason for the Government to introduce a rule which prevents any person who is convicted for an offence involving moral turpitude from becoming a Member of the Committee of the Society. There is no violation of the principle of equality in this matter 5. There is no violation of the principle of equality in this matter 5. The next contention urged by the learned Counsel that Model Bye Laws prescribed under the provisions of the rules with regard to Co-operative Marketing and Consumer Union Limited Arki contained a provision that a person who has been sentenced for offence for moral turpitude, he shall be disqualified only for a period of five years and after the lapse of five years from the date of expiration of the sentence can become the Member of the Board of Directors of the Society. This argument is also almost similar to the earlier argument. Just because the bye-laws of the Marketing Union Limited, Arki contains such provision, it will not enable the petitioner to contend that the Rules 41 (1) (b) and 41 (2) (b) are unlawful and unconstitutional Apart from that, the Marketing Union, Arki is also governed by the provisions of the H P Co-operative Societies Act and the rules framed there under. The bye-laws will be invalid, inasmuch as they contravene the provisions of the rules. 6. On the other hand, it is brought to our notice by the respondent-State that bye-laws have been framed in the Jogindra Central Co-operative Bank which is 4th respondent herein as early in 1924 as follows :— "Member of the Bank may be expelled by the Board of Directors of the Bank for one of the following reasons : (i) If the Member is convicted of criminal offence involving moral turpitude or dishonesty 7. When such rule has been inforce from 1924 with regard to the Cooperative Bank, it is not open to the petitioner to place reliance on Model Bye laws for other Co-operative Banks and contend that Rules 41 (1) (b) and 41 (2) (b) are ultra vires 8. When such rule has been inforce from 1924 with regard to the Cooperative Bank, it is not open to the petitioner to place reliance on Model Bye laws for other Co-operative Banks and contend that Rules 41 (1) (b) and 41 (2) (b) are ultra vires 8. Our attention has also been drawn to Bye laws of the H, P State Co-operative Agriculture and Rural Development Bank Ltd. Bye-law 33 (c) provides that if the person is convicted of any offence involving dishonest or moral turpitude he shall not be eligible for election to the Board of Directors as Member of the Bank Similarly, in the bye laws of the H P. State Co operative Bank Ltd., Bye-law No. 56 (b) provides that a person who has been sentenced for any offence other than an offence of a political character or an offence not involving moral delinquency, such sentence not having been reversed, he shall not be eligible for appointment or election as a Director of the Board. It appears that in so far as Cooperative Societies and Co-operative Banks are concerned the rules are uniform that a person who is convicted of any offence involving dishonest or moral turpitude, shall not become a Member of the Management of the Committee or the Board of Directors. 9. On a direction given by this Court on 30 11-1996, a copy of the Bye laws of the 5th respondent herein, namely, EL P State Co-operative Marketing Consumers Federation has been placed before us Under bye-law No. 36, Clause (iv), if a person has been convicted of an offence involving in the opinion of the Registrar moral turpitude that he is not eligible for election or continuance as Director of the Federation. Earlier by an order dated 2*9-1992, this Court had permitted the petitioner to contest the election lor the Board of Directors of the Sth respondent. However, it was made clear by that order that the ultimate decision in the writ petition will be binding on the parties, 10. Nothing has been shown before us as to how Rules 41 (1) (b) and 41 (2) (b), are unconstitutional or invalid. Hence, we reject the contention of the petitioner and hold that the said rules are valid. However, it was made clear by that order that the ultimate decision in the writ petition will be binding on the parties, 10. Nothing has been shown before us as to how Rules 41 (1) (b) and 41 (2) (b), are unconstitutional or invalid. Hence, we reject the contention of the petitioner and hold that the said rules are valid. Consequently, the order passed by the Secretary (Co-operation) rejecting the revision of the petitioner is correct and unassailable, Consequently, we also reject the prayer of the petitioner that the said rules are ultra vires the provisions of the Constitution of India. 11. The writ petition fails and it is dismissed In view of the dismissal of the writ petition, the election of the petitioner as Director of the 5th respondent-Society, is invalid. It is open to the 5th respondent to take further action on that basis. 12. It is open to the petitioner to make a representation to the State Government or the concerned authorities for amending the relevant rules. Petition dismissed.