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1996 DIGILAW 782 (MP)

GRASIM KARYAKARTA SAHAKARI SAMITI LTD v. STATE OF MADHYA PRADESH

1996-09-04

A.K.MATHUR, S.K.KULSHRESTHA

body1996
A. K. MATHUR, S. K. KULSHRESTHA, JJ. ( 1 ) PETITIONERS have by this petition challenged the provisions of Sections 58 and 95 of the M. P. Co-operative Societies act and Rule 50-A of the M. P. Co- operative Societies Rules and have prayed that the same may be declared to be ultra vires and unconstitutional. The petitioners have also prayed that Annexure-8 notification dated 23-1-1984 by which the audit fees has been increased may be quashed. The petitioners have also sought quashing of annexures C1, C2 and C3 demand notices and refund of audit-fee paid by them for the years 1982-83,1983-84 and 1985-86. ( 2 ) BRIEF facts giving rise to this petition are that the petitioner No. 1 Grasim karyakarta Sahakari Samiti Limited is a registered society under the provisions of m. P. Co-operative Societies Act, 1960 (for short the Act) having its registered office at Birlagram, Nagdam. P. Petitioner Society has about 380 members. The main object of the petitioner society is to make available to the consumers, who are employees of the industrial units in the Birlagram Industrial Area, articles such as food-gains, edible oils, petroleum products and other articles of daily consumption at a no profit no loss basis. The petitioners are running a grain shop, a general stores dealing in toilet items, a shoe shop and a petrol pump in Birlagram Industrial Area at Nagda. ( 3 ) THE books of account of the petitioner society and properly maintained as required by the Act and the Rules framed thereunder and are audited regularly by m/s. M. L. Sharma and Company, a firm of Chartered Accountants having their head-office at Bombay. Sub-section (1) of Section 58 of the Act provides that the registrar shall audit, or cause to be audited by a person authorised by him in writing by general or special order in that behalf, the accounts of every society once atleast every year and shall recover from such society such fees as may be prescribed. Rule 50-A of the M. P. Co-operative Societies Rules, 1962 (for short the Rules), framed under Section 95 of the Act provided that audit fee is to be recovered on the basis of schedule appended to this rule for auditing its accounts for each co-operative year. As per the notification dated 25-7-1975 (Annexure-A), a higher audit fee payable by the co-operative societies was fixed at Rs. As per the notification dated 25-7-1975 (Annexure-A), a higher audit fee payable by the co-operative societies was fixed at Rs. 2,000/- per year. The same was increased by notification dated 23-1-1984 (Annexure-B) and thereupon the respondents issued demand notices for the years 1983-84,1984-85 and 1985-86 in the sum of Rs. 26,550/-, rs. 23,880/- and Rs, 25,077/- respectively (Annexures C1, C2 and C3 ). The respondents demanded the aforesaid fees and threatened that auction will be taken on failure to deposit the same. Therefore, the petitioners have filed this petition challenging validity of Sections 58 and 95 of the Act and Rule 50-A of the Rules and quashing of Annexure-B notification and demand notices Annexures C1, C2 and C3. ( 4 ) SO far as the validity of Sections 58 and 95 of the Act is concerned, no specific ground has been raised as to why these provisions are ultra vires. Section 58 of the act provides for audit and audit-fee. Section 58 says that the Registrar shall audit or cause to be audited by a person authorised by him in writing by general or special order in this behalf, the accounts of every Society once atleast ever year and shall recover from such society such fees as may be prescribed. This provision appears to be valid as the societies and firms have to be kept under supervision and for that the audit is necessary in order to have supervisory control over them. Therefore, there is nothing wrong in getting audited the accounts of a society by the Registrar. ( 5 ) SECTION 95 of the Act confers power on the State Government to make rules. Section 95 says that the Government may, for the whole or any part of the State and for any society or class of societies, make rules for the conduct and regulation of the business of such society or class of societies and for carrying out all or any of the purposes of this Act. Section 95 (2) (aa) of the Act prescribes that the rules can be framed by the State prescribing the accounts and books to be kept by a society and provide for the audit of such accounts and the charges if any, to be made for such audit, and for the periodical publication of a balance-sheet showing the assets and liabilities of a society. Sub-section (3) of Section 95 says that all rules made under the act shall be laid on the table of Legislative Assembly. So far as the validity of Section 95 is concerned, it is hardly challenged in the petition. Section 95 (2) (aa) of the Act clearly empowers the State to frame rules for carrying out audit of accounts and the charges to be made for such audit. ( 6 ) PURSUANT to the powers conferred by Section 95 of the Act, rules have been framed by the State Government known as M. P. Co- operative Societies Rules, 1962. Rule 50-A of the said Rules talks about levy of audit fees. Sub-rule (1) of Rule 50-A of the Rules says that every society the accounts of which are audited under sub-section (1) of Section 58 shall pay to the State Government a charge for the audit of its accounts for each co-operative year in accordance with the scale laid down in the schedule in respect of the class of society to which it belongs. The notification annexure-B was issued in exercise of power conferred on the State for raising fee for audit. Accordingly, charges have been raised for auditing the accounts of the society. ( 7 ) SO far as levy of audit-fees under Rule 50-A is concerned, only challenge made is that the rules were not laid on the table of the Assembly and hence they cannot be enforced. Return has been filed and the respondents have pointed out in their reply in paragraph 13 that the notification in question was laid on the table of the Legislative Assembly on 11th February, 1988 vide Annexure-R-II as informed by the Under Secretary of Madhya Pradesh Vidhan Sabha to the Secretary of co-operative Societies, Madhya Pradesh and in support of this, the respondents have filed annexure-R-II. Therefore, the learned Counsel's contention does not survive. More so, it may be relevant to mention here that even if procedure has not been followed, that would not render the issuance of notification illegal or bad in law on that count, as their Lordships of Hon'ble Supreme Court in the case of State of M. P. v. Hukum Chand Mills Karmachari, (1996) 7 SCC Page 81, arising from Madhya Pradesh held that such procedural flaw will not render the rule bad in law. So far as increase of levy of audit fee by notification Annexure-B is concerned, it is within the competence of legislature. The notification is a valid and the Registrar, Co-operative Societies has rightly raised the demand, Annexure-C1, C2 and C3 carefully justified. There is no merit in the petition. It is accordingly dismissed. There shall be no order as to costs. Security if any be founded to the petitioners. Petition dismissed. .