Research › Search › Judgment

Himachal Pradesh High Court · body

2012 DIGILAW 244 (HP)

Bir Singh v. State of H. P.

2012-05-02

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

body2012
JUDGMENT : Kurian Joseph, C.J. (Oral) The dispute with regard to the number of members to be nominated in a primary Cooperative Society has come up before this Court in this case. The Managing Committee of a Cooperative Society is to be constituted in terms of Section 34 read with Section 35 of the Himachal Pradesh Cooperative Societies Act, 1968 and Rule 38 of the Himachal Pradesh Co-operative Societies Rules, 1971. Section 34 provides as follows: "34. Managing committee.- The management of every society shall vest in a managing committee constituted in accordance with the rules and the byelaws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively, by this Act, the rules and the bye-laws." 2. Section 35 (1)(a) provides as follows: "35. Nominees of the Government and other nominees on the committee of co-operative societies.- (1)(a) Where the State Government - (i) has subscribed to the share capital of a co-operative society; or (ii) has assisted indirectly in the formation or augmentation of the share capital of a co-operative society as provided under section 48; or (iii) has guaranteed the repayment of a principal and payment of interest on loans and advances to a society; the State Government or any authority specified by the State Government in this behalf shall have the right to nominate having such qualifications and experience and in the manner as may be prescribed, not more than three members or one-third of the total number of the members of the committee of the society whichever is less." 3. In the instant case, the Registrar has nominated three members. It is the contention of the petitioners that the bye-laws hearing provides for the Managing Committee of five members, not more than ?rd can be nominated by the Government in terms of Section 35 (1)(a). The counsel appearing for the private respondents has sought reliance on Rule 38 of the Rules and contends that ?rd has to understand as the ?rd of the total members of the Committee including the nominees. Rule 38 to this extent relevant reads as follows: "38. Constitution of Managing Committee- 1. The counsel appearing for the private respondents has sought reliance on Rule 38 of the Rules and contends that ?rd has to understand as the ?rd of the total members of the Committee including the nominees. Rule 38 to this extent relevant reads as follows: "38. Constitution of Managing Committee- 1. The managing committee of a Co-operative society shall be constituted by:- (a) election from amongst the members of the society at the annual/special general meeting; (b) appointment by the Registrar in the manner provided in the Rule 39; (c) nominees of the Government under Section 35 of the Act; and (d) nominees of the other Co-operative Societies as provided in the bye-laws. (2) The managing committee of the society shall have not less than five nor more than twenty-one members, including the Government nominees, as may be fixed in the bye-laws." 4. Rule 38 (2) of the Rules thus provides that including the Government nominees, the members shall not be less than five and not more than twenty one. The strength is to be fixed in the bye laws as approved by the Registrar. 5. In the instant case, bye-laws provide for Committee only of five members. The number of nominees has to be worked out on the basis of the strength of the Managing Committee as stipulated in the bye-laws of each Society and that is the only interpretation possible in terms of Section 35 (1)(a). In case ?rd is more than three, the number of nominees has to be limited to three and if ?rd is less than three, it is to be restricted to ?rd of the strength as fixed in the bye-laws. 6. In the instant case, the Managing Committee as per the bye-laws is of five members. Therefore, nominees under Section 35(1)(a) of the Act cannot exceed two. Hence, the impugned orders are quashed with a direction to the first respondent to take further appropriate action in the light of what is held above. 7. We are informed that the entire election has been set aside. Therefore, interim order dated 25th February, 2011 is vacated, without prejudice to the liberty to the aggrieved party to take appropriate action. 8. The writ petition is disposed of, so also the pending applications, if any.