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2002 DIGILAW 1077 (PAT)

Nawal Kishore Yadav v. State Of Bihar

2002-10-04

AFTAB ALAM

body2002
Judgment Aftab Alam, J. 1. The petitioner was nominated as Chairman of the Managing Committee of the Nalanda Central Co-operative Bank Limited, Nalanda by a notification issued by the State Government on 15-12-2001 (Annexure-1). In terms of that notification the petitioner was to hold office for a period of three years. In the meanwhile, Bihar Co-operative Societies (Amendment) Act, 2002 (Bihar Act 10 of 2002) came into force making a number of amendments in the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as the Parent Act). By sec. 8(3) of the Amendment Act, sec. 14(5) of the Parent Act was amended and was substituted by the following provisions:- - "Notwithstanding anything contained in any provision of this Act, Rules made there under and bye laws of the Society the existing members and office bearers nominated by the Government shall cease to be a member of the managing committee within ninety days of the publication of this Amendment Act in the official gazette, and such registered society shall have elections to the vacant posts for the remaining period of its term: Provided further that in superseded societies the Administrator of the Society shall constitute new managing committee by election within twelve months from the date of publication in the official Gazette of this Amendment Act, 2002; otherwise the Registrar shall appoint a new Administrator for a further period of three months and get the managing committee constituted by election, 2. The amendment Act was published in the Bihar Gazette (Extraordinary) of June 8, 2002. Counting 90 days from June 8, 2002, the date of publication of the Amendment Act in the Official Gazette, the petitioner would be deemed to have been removed from his office on September 7, 2002. This writ petition has been filed challenging this position announced in the Press release, issued by the Managing Director of the Bank. The petitioner seeks to delay his removal from office and it is contended on his behalf that publication in the Official Gazette does not oniy mean printing of the Act in the Gazette. According to the petitioner, the expression publication in the gazette means much more than that. 3. Mr. The petitioner seeks to delay his removal from office and it is contended on his behalf that publication in the Official Gazette does not oniy mean printing of the Act in the Gazette. According to the petitioner, the expression publication in the gazette means much more than that. 3. Mr. S.S. Asghar Hussain, learned Senior Counsel appearing in support of this petition submitted that publication in the Official Gazette has been interpreted to mean, apart from printing in the Gazette, a wider circulation and dissemination of the information about the amendment in the Act among the general public. In reply to a specific query as to from which date the period of 90 days might be counted, Mr. Hussain replied that the period of 90 days could be counted at least from the date the copy of the Gazette, in which the Amendment Act was published, was received in the concerned department. 4. Learned Counsel stated that in this case even the copy of the Gazette (Extraordinary) dated June 8, 2002 was not received in the Co-operative Department and an averment to this effect was made in paragraph 14 of the writ petition. 5. In support of the submission that the expression publication in the Official Gazette means and includes a wide circulation and dissemination of the information among the general public, learned Counsel relied upon two decisions, one by the Supreme Court in Collector of Central Excise V/s. New Tobacco and Company and Ors., 1998 (8) S.C.C. 250 and the other by a Bench of this Court in McDowell & Company Ltd. V/s. The State of Bihar and Ors., 2000 (3) PLJR 475 . 6. On a careful consideration of the matter I am unable to accept the submission and to my mind the two decisions relied upon by Mr. Hussain have no application to the facts of this case. The decisions have no application for two reasons; first, both-in Collector of Central Excise and M/s. McDowell and Company, what was required to be published, were notifications, and S.Os. issued under certain provisions of the Rules. In the case in hand, the subject of publication is an Act of the legislature itself. Moreover, the submission overlooks the provision of Sub-sec. (3) of sec. 1 of the Amendment Act, which mandates that the amendments shall come into force at once. 7. issued under certain provisions of the Rules. In the case in hand, the subject of publication is an Act of the legislature itself. Moreover, the submission overlooks the provision of Sub-sec. (3) of sec. 1 of the Amendment Act, which mandates that the amendments shall come into force at once. 7. The second reason for which I feel that the two decisions have no application to this case, is that those two decisions were rendered in fiscal and taxing statutes, in which the considerations would be entirely different. Both under the Central Excise Act and the Bihar Excise Act the amount of tax is to be collected from the ultimate consumer and if the manufacture/wholeseller/ retail seller failed to collect the amount of tax from the buyer, the tax liability will have to be borne by him regardless of the financial consequences. In those circumstances the Courts insist, and with respect rightly so, that the orders, notifications and rules issued under taxing statutes must receive a wide circulation before their enforcement. The same considerations would not apply for example, in case of amendment in the Indian Penal Code or as in this case in the provisions of the Co-operative Societies Act. In case of the Indian Penal Code no one can contend that the Amendment Act shall not come into force even after its publication in the Official Gazette, because it was not given wide circulation. In this case as well the ammended provision would affect only the office- bearers nominated by the Government and it cannot be imagined for a moment that the petitioner was not aware of this amendment of the Act immediately on its publication in the Official Gazette. 8. In the light of the discussions made above, I find no merit in this writ petition and it is accordingly dismissed.