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2009 DIGILAW 154 (PAT)

Ramzan Ansari v. State Of Bihar

2009-02-02

KISHORE K.MANDAL, S.K.KATRIAR

body2009
JUDGEMENT 1. Heard Mr. Y.V. Giri for the petitioners, and Mr. P.K. Shahi, learned Advocate General for the respondents. The petitioners press this interlocutory application with the prayer to direct respondent no. 2 (The Registrar, Cooperative Societies, Bihar, Patna), to notify the election programme to hold special general meeting/election of Chairman and Members of the Board of Directors of Bihar State Cooperative Marketing Union (BISCOMAUN for short) in the circumstances, indicated therein, and also in view of the orders dated 15.5.2008, and 30.6.2008, passed on the present writ petition. 2. BISCOMAUN is a cooperative society registered under the Bihar Cooperative Societies Act, 1935 (hereinafter referred to as the Act). It is "apex society" whithin the meaning of Rule 2(ix) of the Bihar Cooperative Societies Rules, 1959 (hereinafter referred to as the Rules). A large number of Primary Agricultural Credit Societies (hereinafter referred to as PACS), within the meaning of Rule 2(gggg) of the Act at the base level, and a large number of "Central Society" within the meaning of Rule 2(xi) of the Rules (also known at some places as Vyapar Mandal) at the intermediate level, are affiliated to BISCOMAUN. In other wordes, a large number of PACS at the base level, and a large number of Central Societies (Vyapar Mandal) at the intermediate level, are affiliated to the apex body, and is pyramidal in structure. The entire network is governed by the provisions of the Act and the Rules and its day- to-day affairs are governed by its bye-laws. Elections are initially held to constitute PACS. The elected members of PACS, in their turn, elect the members of the intermediate bodies who constitute the electoral college for election of the Managing Director and the Members of the Board of Director of the apex body. 3. The Bihar Legislature enacted the Bihar Coopertive Societies (Amending) Act, 2008 (hereinafter referred to as the Amending Act), making amendments in the Act. The Amending Act inserted Section 14(A)(1) in the Act, making provision for election to the managing committees of registered societies under the Act. Section 14(A)(1)(2) of the Act provides that election to the managing committees of such registered societies shall, after the date of such notification, be held in terms of the provisions of the Act even if the proposed election has commenced, but the results of such election have not been declared prior to that date. Section 14(A)(1)(2) of the Act provides that election to the managing committees of such registered societies shall, after the date of such notification, be held in terms of the provisions of the Act even if the proposed election has commenced, but the results of such election have not been declared prior to that date. Section 14(A)(3) provides that election to the Managing Committee of registered societies shall be held within six months from the date of such notification which may further be extended for a period of six months. In other words, the election must be over within a period of one year from the date the amendment has been enforced. It is relevant to state that the Amending Act was enforced with effect from 30.4.2008. Section 14(A)(4) of the Act makes arrangements for the interregnum. The newly inserted Section 14A is reproduced hereinbelow for the facility of quick reference: "14A. Election to the managing committee of certain registered societies. (1) The Government may by notification in the official gazette prescribe that election to the managing committee of a class or classes of registered societies shall be conducted by an authority, by whatever name such an authority may be known, created for the purpose of conduct of election to the managing committee of registered societies under this act and/or for any other body, organization, committee etc. and in the manner prescribed for the conduct of election by such authority. (2) Notwithstanding anything contained in any provision of this Act, rules made thereunder and bye laws or a registered society, the election to the managing committee of such class or classes of registered societies notified under sub-section (1) shall, after the date of such notification, be held in terms of the provision of this section, even if the process of election has commenced but the result of such election has not been declared prior to that date. (3) Notwithstanding anything contained in sub-section (9) of section 14 of this Act, Rules made thereunder and the bye laws of a registered society, the election to the managing committee of the class or classes of registered societies notified under sub-section (1) shall be held within six months from the date of such notification which may further be extended for a period of six months. (4) Notwithstanding anything contained in sub-section (9) of Section 14 of this Act, Rules made thereunder and the bye laws of a registered society, if the term of the managing committee of such registered societies notified under sub-section (1) expires after the notification under that sub-section, shall get extended till such time the managing committee is constituted after elections in terms of the provision contained in that sub-section. (5) Any registered society notified under sub-section (1) and-after the constitution of its managing committee under sub-section (2) is superseded or ceases to exist for whatever reason, before the expiry of its term under sub-section (9) of Section 14, the election to the managing committee for such society shall be conducted by the same authority as prescribed under sub-section (1). The term of such managing committee including the term held by earlier managing committee alongwith the period due to supersession or otherwise, if any, shall not exceed the period prescribed under the provision of sub-section (9) of Section 14. (6) No election to any class or classes of registered societies under sub-section (1) shall not be called in question except by way of an election petition filed within ninety days from declaration of the result of such election and the same shall be decided as a dispute under Section 48 of this Act. Such an election petition shall be filed before the Registrar or such other officer appointed to assist the Registrar under Section 6 of this Act." 3.1) The Amending Act amends Section 44AQ of the Act. Sub-section (2) of Section 44AQ of the Act shall be substituted by Section 2(a) which, inter alia, provides that, for the purpose of development of agriculture, area of each PACS shall be coextensive with that of a Panchayat, and there will be only one such society in each Panchayat. The newly substituted provision is reproduced hereinbelow for the facility of quick reference: "(2)(a) In order to achieve the objective of this Act, to bring uniformity in the operation of the societies under this Chapter, to enhance their strength and usefulness and to make them viable for the purpose of development of agriculture, the area of a Primary Agriculture Credit Society shall be co-terminus with that of a Panchayat and there will be only one such society in each Panchayat. (b) Notwithstanding anything to the contrary contained in this Act, if the area of a Primary Agriculture Credit Society is found not to be that of a Panchayat as provided under sub-clause (a) of this sub-section, the Registrar or an officer authorized by Registrar to act on his behalf, who shall not be below the rank of Assistant Registrar, may order for reorganization including amalgamation or division of one or more such societies as the case may be and register the new society/societies after such reorganization." The newly inserted sub-section (3) provides for an automatic transfer of membership of the quondam cooperative societies to the newly constituted cooperative societies under the Act. The amendment is reproduced hereinbelow for the facility of quick reference: "(3) Notwithstanding anything contained in this Act, the society or societies which are reorganized under sub-section (2) alongwith its managing committee shall be deemed to have been dissolved and shall cease to exist from the date of registration of the new society/societies under sub-section (2) and the membership of such registered society shall stand transferred to the respective primary agriculture credit society created for the Panchayat to which such members belong after reorganization under sub-section (2) and all the assets and liabilities thereof shall get divided/ distributed amongst the new society/ societies in the manner prescribed by the Registrar/Government: Provided that the State Government may from time to time, declare a moratorium on the liabilities of the new society/ societies created under sub-section (2) of this Section." 4. The Bihar Legislature has also enacted the Bihar State Election Authority Act, 2008 (Act 14 of 2008) (hereinafter referred to as the Election Act), which provides the machinery and the personnel to conduct elections to the cooperative societies in Bihar. The Election Act has constituted the State Election Authority to conduct election for all cooperative societies in Bihar including BISCOMAUN. The State Election Authority, as contemplated by sub-sections (1) and (3) of Section 3 of this Act, has been constituted by notification published in the Bihar Gazette Extraordinary Issue, dated 13.5.2008. The Chief Election Officer contemplated by Section 3(3) and Section 3(4) of this Act has been appointed, vide notification published in the Bihar Gazette Extraordinary Issue, dated 17.5.2008. The District Returning Officer, and the Deputy District Returning Officers, have been appointed by notification dated 24.12.2008. The Chief Election Officer has issued notification no. The Chief Election Officer contemplated by Section 3(3) and Section 3(4) of this Act has been appointed, vide notification published in the Bihar Gazette Extraordinary Issue, dated 17.5.2008. The District Returning Officer, and the Deputy District Returning Officers, have been appointed by notification dated 24.12.2008. The Chief Election Officer has issued notification no. 167, dated 24.12.2008, notifying preparation of the electoral roll for the cooperative societies at the base level. 5. According to the writ petition, the petitioners are members of BISCOMAUN. Respondent No. 2 had issued notice dated 3.3.2008 (Annexure-1), notifying the programme for election of the intermediate bodies on 12.4.2008, and 20.4.2008 was fixed for holding the annual general meeting for appointment of the Managing Director, and the Members of the Board of Directors, of BISCOMAUN. The elections were held on 12.4.2008, and the list of 108 persons elected to the different cooperative societies at the intermediate level was published on 19.4.2008 (Annexure-2). This batch of 188 persons forms the electoral college to elect the Board of Directors of BISCOMAUN. In the meantime, the Amending Act was enforced on 30.4.2008. This was followed by the notification dated 1.5.2008, published by the Bihar Government in the Cooperative Department, whereby it was notified that, in view of the provisions of the newly inserted Section 14A(1) of the Act, the State Election Authority will hold election of the following bodies mentioned therein: Consequently, the Registar of the Cooperative Societies, Bihar, issued order no. 3565, dated 1.5,2008 (Annexure-6), notifying that election to the Managing Committees shall be conducted by the State Election Authority, and impugned herein. 6. The present writ petition was instituted in this Court on 7.5.2008, and a Division Bench of this Court passed order on 9.5.2008, staying operation of the order dt. 1.5.2008 (Annexure-6) of the Registrar. The relevant portion of the order is reproduced hereinbelow for the facility of quick reference: "In such view of the matter, the order dated 1st May, 2008, of the Registrar shall remain stayed until further orders. It is made clear that this order as well as pendency of the present writ petition will not stand in the way of appropriate Authorities to take such steps as they are entitled to take in accordance with law." This was followed by the order dated 9.5.2008 (Annexure-12), passed by respondent no. It is made clear that this order as well as pendency of the present writ petition will not stand in the way of appropriate Authorities to take such steps as they are entitled to take in accordance with law." This was followed by the order dated 9.5.2008 (Annexure-12), passed by respondent no. 2, whereby he stayed the election of the Cooperative Societies the results of which had not been announced, even though eiections had already been held. By order dated 15.5.2008 of this Court, the Division Bench stayed operation of the said order dated 9.5.2008 (Annexure-12). This was followed by the order dated 9.5.2008 (Annexure-13), of the authorities whereby the said order dated 1.5.2008 (Annexure-6) was countermanded. 7. The matter was again taken up by a Division Bench on 30.6.2008, on which date the writ petition was admitted and notices were directed to be issued to the non-appearing respondents. Paragraph-5 of the order is reproduced hereinbelow for the facility of quick reference: "Until further order, the Registrar, Cooperative Societies, Bihar, Patna, is permitted to go ahead with the election of the Managing Committee (Board of Directors) of respondent no. 6 .The Bihar State Cooperative Marketing Union Ltd. (BISCOMAUN), Patna, pursuant to the order dated 3rd March, 2008 (Annexure-1). It is clarified that such election shall be subject to final decision in the writ petition." The petitioners have filed this interlocutory application (I.A. No. 6412 of 2008) praying that, inter alia, in view of the earlier orders of this Court, respondent no. 2 may be directed to hold election to the Board of Directors of BISCOMAUN on the basis of the electoral college already in place vide Annexure-2. 8. While pressing this application, learned counsel for the petitioners submits that the respondent authorities are refusing to hold the elections to the apex body by an untenable interpretation of the orders of this Court to mean that this Court never intended to positively direct the authorities to hold the elections on the basis of the electoral college vide Annexure-2. In his submission, the words of respect used by this Court should not be misinterpreted by the authorities. In his submission, the words of respect used by this Court should not be misinterpreted by the authorities. He further submits that this Court has in its earlier orders clearly observed that the intention of the newly inserted provisions is not to wipe off the election process which has already taken place, which has to be preserved, and the rest of the election process to take place hereinafter shall be held as per the provisions of the Act and the Election Act. In his submission, therefore, any other interpretation either of the provisions of the amendment, or the terms of the orders of this Court, would be to stalling the democratic process and would also be acting in disobedience of the orders of this Court. He also submits that the orders of this Court do not tantamount to allowing the writ petition itself. He indeed submits that the orders of this Court clearly state that the interim orders are subject to the final disposal of the writ petition. He relies on the judgment of the Supreme Court in Devraj vs. State of Maharashtra [2004(4) SCC 697 (Para 12)]. 9. Learned Advocate General has submitted that it is quite clear on a plain reading of the orders of this Court that no peremptory order was sought to be issued to the authorities to hold the election on the basis of the electoral college marked Annexure-2, and as per the notified programme vide Annexure-1. He next submits that the statute permits one year time to the concerned authorities to complete the election throughout the State of Bihar. The State Election Authority has been constituted, the Chief Electoral Officer alongwith other personnel have already been appointed, the entire network of primary societies have already been restructured, and the programme for their elections have already been notified. Once the same is complete, the statutory duty of constitution of the bodies at the intermediate level shall be taken up. The task at the level of the apex body would be much simpler and will take little time. He also submits that keeping in view the intention and the spirit of the amendments and the Election Act, it is not possible to, hold the election of the Board of Directors on the basis of the purported electoral college vide Annexure-2. The task at the level of the apex body would be much simpler and will take little time. He also submits that keeping in view the intention and the spirit of the amendments and the Election Act, it is not possible to, hold the election of the Board of Directors on the basis of the purported electoral college vide Annexure-2. In view of the provisions of amended Section 44AQ, the very basis of the electoral college at the primary level has been fundamentally transformed and, therefore, Annexures-1 and 2 have become redundant. 10. We have perused the materials on record and considered the submissions of learned counsel for the parties, and given our anxious consideration to the issues in hand. We are mindful of the position that this Court has passed interim orders on three occasions, namely, 9.5.2008, 15.5.2008 and 30.6.2008. The writ petition raises fundamental issues relating, inter alia, to the vires of Section 14A of the Act. We are informed at the Bar that a large number of writ petitions have been preferred in this Court seeking to challenge the vires of Section 44AQ of the Act also. However, validity of the Election Act has not been raised in the present writ petition. We must candidly state that the combined effect of the three orders of this Court was to direct the respondent authorities to hold the elections as per the programme already notified. However, certain developments in the meanwhile have taken place which necessitate modification of the order. We are mindful of the. position that the respondent authorities have not filed application for modification of the order(s), but we have chosen to do so for the reasons assigned hereinafter. 11. The three orders were passed, inter alia, on the footing thatt, though the State Election Authority had been notified, the Chief Election Officer had not been appointed and, therefore, the authority is non-functional. The Chief Election Officer, as well as the personnel who will assist him, have since been appointed. The Authority has taken long strides in implementing the provisions of the Act. The massive task of reconstituting the cooperative societies at the Panchayat level is complete. The election to the same is round the corner. We must note that this has involved massive restructuring at the base level both in terms of structure of cooperative societies as well as in sheer number of members. The massive task of reconstituting the cooperative societies at the Panchayat level is complete. The election to the same is round the corner. We must note that this has involved massive restructuring at the base level both in terms of structure of cooperative societies as well as in sheer number of members. Its membership has been widely expanded for mass participation in the cooperative movement relating to development of agriculture. It further appears to us that the restructuring and election at the intermediate level would be possible only after the election at the primary level is over. It further appears to us that the election at the level of the apex body would be a simpler affair, it being a pyramidal structure. Learned Advocate General is right in his submission that, in view of restructuring of the cooperative societies and fundamental transformation of the body of voters, it is now not possible to hold the election at the level of the apex body on the basis of the electoral college vide Annexure-2, prepared under the quondam system. We further agree with the learned Advocate General that implementation of the Amending Act and the Election Act is not confined to BISCOMAUN alone, but has to be done with respect to a large number of other cooperative societies spread throughout the State of Bihar and possibly the State of Jharkhand. Implementation of an Act of this nature and magnitude, which covers the entire length and breadth of the State involving the whole mass of teeming millions of this State, will surely take some time, and may cause some teething troubles also, because of its sharp departure from the previous system. 12. Implementation of the core and substance of the two enactments has to be ensured, overlooking minor deviations caused by the teething troubles during the period of transition at a stage when the amendments are being implemented for the first time. Reference may be made to the judgment of a Division Bench of this Court in the case of Ashok Kumar vs. Union of India, (1999)3 PLJR 255. That was a case where the selection committee constituted under the Regulations prepared a consolidated list for the vacancies occurring during the period of three years as it could not meet as per the Regulations during this period. That was a case where the selection committee constituted under the Regulations prepared a consolidated list for the vacancies occurring during the period of three years as it could not meet as per the Regulations during this period. The Regulations required the committee to meet at intervals not exceeding one year and prepare the select list. The Division Bench held that if it meets after a gap or several years, it has to prepare separate list for each year, keeping in view the number of vacancies of that year after considering the State Civil Services Officers who were eligible and fell within the zone of consideration for selection in that year. Hence the consolidated list was illegal. It was further observed that holding of committee meeting each year is intimately connected with and is an integral part of the scheme envisaged by the Regulations. If for any reason, the select committee is not able to meet each year, it will certainly give rise to complications. That, however, does not mean that the Regulations cannot be worked. The amendment to Regulation 7(4) does not, in any manner, affect the provisions which provide for the preparation of a select list year-wise. Since the year-wise list is sought to be prepared after a lapse of several years, some minor deviations have to be permitted of necessity, so that the regulations are substantially complied with. The Division Bench, therefore, concluded that amendment to Regulation 7(4) does not touch the core question regarding preparation of the select list for each year. One of us (S.K. Katriar, J.) had the occasion to apply the judgment in CWJC No. 7725 of 2005 (Sunil Kumar Sinha & Ors. vs. The State of Bihar & Ors.), and analogous writ petitions, disposed of on 12.9.2008. 13. It appears that the amendments have been introduced with the intention to bring about mass movement in the agricultural sector with the help of cooperative movement involving mass participation. It is evident that the Legislature has attached great importance to the same by enacting the Election Act, whereby a separate Election Authority has been constituted to conduct the elections for all the cooperative societies in the State. Furthermore, it appears to us that these two enactments are in furtherance of Part-lX of the Constitution of India, which is headed "Panchayat". Furthermore, it appears to us that these two enactments are in furtherance of Part-lX of the Constitution of India, which is headed "Panchayat". We are, therefore, of the view that any other view would be tantamount to interference with the will of the Legislature read with Part-IX of the Constitution of India. This Court must desist from taking any step which will have the propensity to delay or deflect implementation of the will of the Legislature. 14. In the result, I.A. No. 6412 of 2008 is dismissed. The entire range of elections from the primary level to that of the apex body (BISCOMAUN) shall be conducted as per the provisions of the amending Act and the Election Act. The Election Authority is hereby reminded of the time-frame engrafted in Section 14(A)(3) of the Act. It is made clear that we have thoughtfully considered the entire conspectus of the matter including the three orders of this Court passed earlier. We make it clear that, in case of any inconsistency, doubt or difficulty, the present order should Pro Tanto be taken to have modified the earlier order(s) of this Court.