Research › Browse › Judgment

Madhya Pradesh High Court · body

1999 DIGILAW 948 (MP)

Adim Jati Sewa Sahakari Samiti Maryadit v. State of M. P.

1999-11-24

DIPAK MISRA

body1999
ORDER Dipak Misra, J. 1. By this writ petition preferred under Article 226 of the Constitution of India, the petitioners have prayed for issue of a writ in the nature of certiorari for quashment of the order dated 26-6-1999, Annexure P-3 passed by the Assistant Registrar, Co-operative Societies, Seoni, respondent No. 2 herein who in exercise of powers conferred on him under section 53(1) of the M.P. Co-operative Societies Act, 1960 (hereafter referred to as 'the Act') has extended the period of supersession in respect of the petitioner No. 1, Society w.e.f. 23-3-1999 to 22-3-2000. 2. The facts in a nutshell are that, the petitioner No. 1 is a Co-operative Society registered under the provisions of the Act and the petitioner No. 2 is one of its Directors. A show cause notice was served on the petitioners under sub-section (1) of section 53 of the Act asking them as to why the elected Committee of the Society should not be suspended. After following the due procedure an order was passed on 23-9-1998 by the Assistant Registrar by which the elected body of the Society was superseded for a period of six months and the respondent No. 3 was appointed as the Officer-in-charge to manage the affairs of the Society. Before expiry of six months the said authority did not pass any order of extension but extended the period by the impugned order with retrospective effect. It is averred in the writ petition that the respondent No. 2 could not have passed the order with retrospective effect and further such an order could not have been passed without affording an opportunity of hearing as contemplated under sub-section (2) of section 53 of the Act. 3. A return has been filed by the answering respondents contending, inter alia, that the respondent No. 2 on consideration of the facts and circumstances passed the order and as it is not the first order of supersession, the petitioner-Society was not entitled to be heard in the matter. It is also urged that such an order is appealable under section 77 of the Act and, therefore, this Court should not interfere. 4. I have heard Mr. Alok Aradhe, learned counsel for the petitioners and Mr. V.K. Shukla, learned Government Advocate for the State. 5. Submission of Mr. It is also urged that such an order is appealable under section 77 of the Act and, therefore, this Court should not interfere. 4. I have heard Mr. Alok Aradhe, learned counsel for the petitioners and Mr. V.K. Shukla, learned Government Advocate for the State. 5. Submission of Mr. Aradhe, learned counsel for the petitioner is that as the facts are not in dispute and pure questions of law arise, this Court should not send the petitioners to agitate their grievance before the appellate Forum. Regard being had to the obtaining factual matrix, I am of the considered opinion that the objection with regard to availability of an alternative remedy is not to be taken cognizance of inasmuch as pure questions of law arise in the case at hand. Accordingly, the objection raised by the learned G.A. is repelled. 6. Section 53 of the Act authorises the competent authority to remove the Committee and appoint a person or persons to manage the affairs of the Society for a specified period not exceeding two years in the first instance on certain conditions-precedent being satisfied. It is also provided in Sub-section (3) therein that no such order of supersession shall remain in force for more than three years in the aggregate. Sub-section (2) which is relevant for present purpose reads as under: (2) No order under sub-section (1) shall be made unless the committee has been given a reasonable opportunity of showing cause against the proposed order and representation, if any, made by it, is considered. Mr. Aradhe placing emphasis on the aforesaid provision has proponed that once the initial term of supersession of six months had expired, the Society should have been heard in the matter before passing of a fresh order. It is also his submission that the authority has been conferred the jurisdiction to pass an order of supersession for a specified period, not exceeding a period of two years in the first instance and the authority concerned had exercised its discretion and passed an order for a specified period of six months, he should not have extended the period without hearing the petitioners. It is also urged by him that the Assistant Registrar, Co-operative Societies has no jurisdiction to pass an order with retrospective effect so as to cover the interregnum period, from of the date of expiry of six months till the date of the order passed vide Annexure P-3. In support of his submission he has placed heavy reliance on a Full Bench decision of this Court rendered in the case of The Collective Farming Society Ltd. and others vs. State of Madhya Pradesh and others, 1974 MPLJ 1 : AIR 1974 MP 59 . In paragraphs 37 and 38 it has been held as under: 37. The next contention for the petitioners is that the State Government had no power to extend the period of supersession with retrospective effect. In our opinion, this contention must be accepted. By order dated May 24, 1971 the period of supersession was extended with effect from November 10, 1970. By the second order dated October 24, 1972 the period of supersession was extended with effect from November 10, 1971. And by the last order dated May 26, 1973 the period of supersession was extended with effect from December 10, 1972. It is only a sovereign legislature which can enact a law with retrospective operation. The Parliament can delegate its legislative power within the recognised limits. Where powers are delegated by the legislature to a person or authority, it will depend upon the language employed in the statutory provision which delegates such power, whether it has empowered in express terms or by necessary implication, such person or authority to exercise that power with retrospective effect. But where no such language is to be found the person or authority exercising delegated legislative functions, cannot make order which can operate with retrospective effect. When power is delegated to an authority by the legislature such authority has no power to exercise it with retrospective effect. In Indramani vs. W.R. Natu AIR 1963 SC 274 Subba Rao J., in his dissenting judgment, observed:- Unless a statute confers on the Government an express power to make an order with retrospective effect, it cannot exercise such a power. 38. In Income Tax Officer, Alleppey vs. M.C. Ponnoose, AIR 1970 SC 385 it has laid down:- The Parliament can delegate its legislative power within the recognised limits. 38. In Income Tax Officer, Alleppey vs. M.C. Ponnoose, AIR 1970 SC 385 it has laid down:- The Parliament can delegate its legislative power within the recognised limits. Where any rule or regulation is made by any person or authority to whom such powers have been delegated by the legislature it may or may not be possible to make the same so as to give retrospective operation. It will depend on the language employed in the statutory provision which in express terms or by necessary implication empower the authority concerned to make a rule or regulation with retrospective effect. But where no such language is to be found it has been held by the Courts that the person or authority exercising subordinate legislative functions cannot make a rule, regulation or bye-law which can operate with retrospective effect. In that ruling, Grover, J., who spoke for the Court, referred to the view of Subba Rao, J., (supra) and observed that in that case the majority did not express any different opinion on the point. See also Hukum Chand vs. Union of India, AIR 1972 SC 2427 . We are therefore, of the opinion that all the three orders passed by the State Government are ultra vires and must be struck down. 7. In view of the aforesaid enunciation of law, it is graphically clear that the Assistant Registrar could not have passed the order of supersession with retrospective effect, as such a power/authority has not been conferred on the said authority. On that ground alone the application is bound to succeed. Accordingly, the order passed by the Assistant Registrar contained in Annexure P-3, is quashed. 8. The application is accordingly allowed. Needless to emphasise, it is open to the competent authority to pass an appropriate order if facts and circumstances so warrant against the petitioner-Society in accordance with law. Application allowed.