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2015 DIGILAW 628 (JK)

Ab. Rashid War v. State of J&K

2015-11-30

HASNAIN MASSODI

body2015
JUDGMENT : Hasnain Massodi, J. 1. Petitioners are Secretaries of various Multi Purpose Cooperative Societies. They are aggrieved with Notification 1SRO 236, dated 25th April 2013, whereby the Government in exercise of powers under sub-rules (1) & (2) of Section 176 of the Jammu and Kashmir Co-operative Societies Act, 1989 have amended Rules 20, 21 and 23. In wake of amendment made, Managing Committee/Board of Multi Purpose Cooperative Societies, is deprived of its powers to conduct election to the members of the Committee/Board of the Cooperative Societies. In terms of the amended Rules, elections are to be conducted on the date(s) specified by the Registrar and under the control of Assistant Commissioner Revenue of the District where registered office of the Cooperative Societies is situated, by Returning Officer to be appointed by the Assistant Commissioner Revenue. They on the grounds urged in the petition seeks following relief: i. Writ in the nature of prohibition, prohibiting the respondents No. 4 to from acting upon the notification forming Annexure D to this Writ petition. ii. Writ in the nature of the Mandamus, commanding the respondents to follow the procedure as provided under section 176(11) of Jammu and Kashmir Cooperative Societies Act of 1989 read with the notification dated 04/01/2005, while conducting the elections. iii. Writ in the nature of Mandamus, commanding the official respondents more particularly respondent No. 2 and 3 to produce the whole record before this Hon'ble court pertaining to the process imitated by them while passing the impugned SRO and place the same before this Hon'ble court for its kind perusal and appropriate orders. Briefly stated petitioners' case is that a Cooperative Society in terms of the Scheme envisaged under Jammu and Kashmir Cooperative Societies Act, 1989 (hereafter Act of 1989), is given complete autonomy to organize and run its affairs including election of members of the Committee/Board. It is pleaded that SRO 236 of 2013, offends object and spirit of the Act of 1939 inasmuch as the right of Cooperative Society to conduct election for Members of the Committee/Board is taken away under the amended rules. Petitioners' case is that rule making power conferred on the Government under Clause (xi) Sub-Section 2, Section 176, is restricted to regulation of election of the Members of the Committee/Board and the election itself is to be conducted by the General Body of the Cooperative Society. Petitioners' case is that rule making power conferred on the Government under Clause (xi) Sub-Section 2, Section 176, is restricted to regulation of election of the Members of the Committee/Board and the election itself is to be conducted by the General Body of the Cooperative Society. It is further pleaded that the Cooperative Societies have not been associated with the rule making process and the petitioners have acquired knowledge about SRO 236 of 2013, dated 25/04/2013, only after the respondents issued Notification Nos. 06 & 09 of 2014, dated 16th July 2014, notifying election of Managing Committee of the Cooperative Societies, Districts Shopian and Baramulla. The controversy is stated to be subject matter of OWP No. 1368/2013 titled Yashpal v. State & Ors. and SRO 236 of 2013, impugned in the petition by interim order dated 18th March 2014. 2. The writ petition is resisted by respondents on the grounds that as the rule making power in terms of Jammu and Kashmir Cooperative Societies Act, 1989 falls within exclusive domain of the State Government-respondent No. 1 herein, the petitioners and the Cooperative Societies, they represent cannot be aggrieved of not having been associated with the amendment made vide 1SRO 236 of 2013, dated 25/04/2013. It is pleaded that amendment to 2SRO 1 of 2005, is to restore the rule position prior to SRO 1 of 2005, and was necessitated because of gross abuse of power by the Cooperative Societies and also order dated 6th November 2012 in LPA(OW) No. 76/2012 upheld by the Hon'ble Supreme Court on 19th February 2013, in petition(s) for Special Leave to Appeal (Civil) No. 7745/2013. Respondents point out that SRO 1 of 2005 was only an experiment to give autonomy to the Cooperative Societies and after the experiment failed inasmuch as elections were endlessly avoided and office bearers allowed to continue beyond their term, it was found necessary to amend the Rules. Respondents question very maintainability of the writ petition, as according to them, none of the petitioners' legal, constitutional and fundamental rights are violated, nor is there any breach of statutory duty, enforcement whereof would be sought, by invoking writ jurisdiction of the court. 3. Heard and considered. 4. Section 176 of Jammu and Kashmir Cooperative Societies Act, 1989, confers power on the Government to make Rules to carry out the purposes of the Act. 3. Heard and considered. 4. Section 176 of Jammu and Kashmir Cooperative Societies Act, 1989, confers power on the Government to make Rules to carry out the purposes of the Act. Clause (i) to (xli) Sub-section 2 of Section 176 enumerates the matters that without prejudice to the generality of sub-section 1 of Section 176, fall within Rule making power of the Government. Clause (xi) Sub-Section 2 of Section 176 of the Act is relevant to the controversy and needs to be noticed: "...xi the election of members of Committee by the general body of Cooperative Society". A bare look at the Clause xi would reveal that Rule making power of the Government extends to all the matters relating to election of Members of Committee/Board by the general body of a Cooperative Society. Be it, initiation of process of election in question, supervision of election, conduct of election, fixation of schedule of election-all matters etc fall within sweep of Clause xi. No surprise that State Government while making Jammu and Kashmir Cooperative Societies Rules 2001, prescribed rules for election of Members of Committee/Board. Chapter IV of the Rules exclusively deals with the "Management of Societies". The election of the Members of the Committee/Board being an integral component of management of Cooperative Societies, therefore all matters connected with such election like procedure for election, disqualification for membership, of the Committee are dealt with by Rules 16 to 25, Chapter IV. Rule 16 reads as under: 16. Election of the members of Committee/Board: (1) The election of the members of the Committee/Board of any society having jurisdiction within a district, other than an agricultural credit society, shall be held on such date as may be specified by the Registrar and shall be conducted under the control of Assistant Commissioner (Revenue) within whose jurisdiction registered office of the society is situated, by such Returning Officer and other officers as may be appointed by him in this behalf. (2) The election of members of a Committee/Board of any society having jurisdiction in two or more districts shall be held on such date, as may be specified by the Registrar and shall be conducted under the control of Dy. Commissioner of the District I which the registered office of the society is situated by such returning Officer and other officer as may be appointed by him in this behalf. Commissioner of the District I which the registered office of the society is situated by such returning Officer and other officer as may be appointed by him in this behalf. (3) The voting at elections held under sub-rules (1) and (2) shall be by secret ballot. (4) No elections shall be called in question except by an election petition presented in accordance with the provisions of Act. (5) Any dispute arising out of an election held under sub-rules (1) & (2) shall be referred for decision to the Registrar who shall decide it himself. (6) the reference of the dispute under sub-rule (5) may be made by any aggrieved party by submitting an election petition to the Registrar, within 30 days from the date of declaration of the result of the election. (7) the decision of the Registrar shall be final. (8) The election of representatives of a society 8 of a higher level society shall be made by the committee of the society by a majority vote in the manner prescribed. In case of the tie, the Chairman shall have the casting vote. Rule 16 gives Registrar and Assistant Commissioner, Revenue key role in conduct of election. The Registrar is to specify the date of election and once the date is specified, the election is to be conducted under the control of Assistant Commissioner Revenue within whose jurisdiction registered office of the society is situated. Assistant Commissioner Revenue is given power to appoint such Returning Officer and other Officers for smooth conduct of election as he deems proper. 5. The Government in 2001, decided to exclude Registrar, Cooperative Societies and Assistant Commissioner Revenue from election process. It was decided to confer power to conduct election of the Members of the Committee/Board on the Governing Body of the Cooperative Societies. It was to be decided to replace Assistant Commissioner Revenue by managing body of the Cooperative Societies. In other words, in terms of decision taken, Managing Committee and not Assistant Commissioner Revenue of the concerned District was to be given power to conduct election including power to appoint Returning Officer and other Officers for smooth conduct of the election. The decision taken were reflected in Notification SRO-1 dated 4th January 2005. The Notification SRO 1 of 2005 amended Rules 16, 18, 19, 21, 23 and 63. The decision taken were reflected in Notification SRO-1 dated 4th January 2005. The Notification SRO 1 of 2005 amended Rules 16, 18, 19, 21, 23 and 63. Sub rules 1 and 2 of Rule 16 were recast as under: "(1) The election of the members of the Committee/Board of any society having jurisdiction in a District shall be held on such a date as may be specified by the governing body of the society within three months of expiry of its term. The notices to this effect shall be circulated by the Managing Committee/Board to all members. Copies of the notices shall be sent to the Deputy Registrar and Registrar Co-operative Societies for reference and record. (2) The Returning Officer shall be appointed by the Managing Committee/Board. He shall be of social standing known for his honesty and integrity and acceptable to majority of the members." In other Rules words "Deputy Commissioner/Assistant Commissioner Revenue" were substituted by Managing Committee/Board, so that other Rules were in tune with Rule 16. The net effect of the amendment was that the power to conduct elections of Members of the Committee/Board was transferred from Registrar and Assistant Commissioner Revenue to Governing Body and Managing Committee of the Cooperative Societies. 6. The experiment made, seemingly did not achieve the intended objectives. If respondents are to be believed, the autonomy given to the Co-operative Societies in the matter of election of Members of Committee/Board was grossly misused. Whoever was elected, was not willing to leave office to which he/she was elected and facilitate election once his/her term came to an end. The elected members of the Committee/Board developed a vested interest in creating all hurdles in smooth conduct of the election at regular intervals. The misuse of autonomy given to the Co-operative Societies was resented by other members of the Societies who felt isolated and denied sense of participation in running the affairs of the Cooperative Societies. 7. The resentment even led to litigation. One of such petitions titled as K.S. Padwal & Ors. v. State of J & K & others was taken up to Hon'ble Supreme Court. The writ Court dismissed the writ petition, where an effort was made to avoid election. The Letters Patent Appeal taken against the writ Court Judgment was dismissed by Division Bench on 19th February 2013. One of such petitions titled as K.S. Padwal & Ors. v. State of J & K & others was taken up to Hon'ble Supreme Court. The writ Court dismissed the writ petition, where an effort was made to avoid election. The Letters Patent Appeal taken against the writ Court Judgment was dismissed by Division Bench on 19th February 2013. The Registrar, Cooperative Societies was directed to ensure that the election were held in accordance with Jammu and Kashmir Cooperative Societies Act, 1989 and Jammu and Kashmir Cooperative Societies Rules, 2001. The Supreme Court declined to interfere with the writ Court Judgment dated 09th October 2012, and LPA Court Judgment dated 19th February 2013. It directed Registrar. Cooperative Societies to ensure that the rule making process for election of Managing Committee of various Cooperative Societies was completed within a month from the date of communication of the Order. 8. The Government taking cognizance of mode and manner in which autonomy given to the Cooperative Societies was abused by avoiding elections after regular intervals and Judgment of Apex Court in K.S. Padwal's Case amended Jammu and Kashmir Cooperative Societies Rules 2001, vide Notification SRO 236 of 25 April 2013. The amendment restored the original position prior to the Notification SRO 1 of 2005. Sub Rule 1 and 2, Rule 16 were substituted by following: "(1) the elections of the members of the Committee/Board of any Cooperative Society having jurisdiction within a District, shall be held on such date as may be specified by the Registrar and shall be conducted under the control of Assistant Commissioner Revenue within whose jurisdiction registered office of the Cooperative Society is situated, by such Returning Officer and other Officers as may be appointed by him/her in this behalf. (2) The election of members of a Committee/Board of any Cooperative Society having jurisdiction in two or more Districts, shall be held on such dates as may be specified by the Registrar and shall be conducted under the control of Deputy Commissioner of the District in which the registered office of the Cooperative Society is situated by such Returning Officer and other Officers as may be appointed by him/her in this behalf". 9. The necessary amendment to other Rules as a sequel to amendment to Rule 16, was also made. 9. The necessary amendment to other Rules as a sequel to amendment to Rule 16, was also made. The substituted Sub Rules 1 and 2 of Rule 16, as would be evident from bare perusal, are Sub Rules 1 and 2 of Rule 16, appearing in the original text of Notification SRO 404, dated 20th September 2001. The amendment restores power of Registrar and Assistant Commissioner Revenue to conduct elections as envisioned by Notification SRO 404, dated 20th September 2001. 10. Petitioners have no reason to feel aggrieved with Notification 1SRO 236, dated 25th April 2013. The Notification impugned in the petition merely restores the Rule position as it was on 20th September 2001. Notification impugned does not strip petitioners of any of their right as would entitle them to invoke writ jurisdiction of the court. None of their rights is violated entitling them to seek quashment of impugned Notification. The contention that Notification SRO 236, dated 25th April 2013, adversely affects autonomy of Cooperative Societies is far-fetched and without any substance. The impugned Notification does not deprive primary Cooperative Societies members/shareholders of the Cooperative Societies of their right to elect Members of the Committee/Board. It therefore does not infringe their right to run affairs of the Cooperative Societies. The Notification is only intended to ensure smooth elections in fair and transparent manner at regular intervals, so that the elections are not indefinitely postponed and primary Cooperative Societies or shareholders of the Cooperative Societies deprived of their right to manage and run affairs of Cooperative Societies through elected representatives. 11. The plea that the Government lacks power to make Rules as regards conduct of elections of the Members of the Committee/Board as such power does not fall within scope of Clause xi Sub-Section 2 of Section 176, Jammu and Kashmir Co-operative Societies Act, 1989 is self-defeating. In one breath, petitioners insist that Notification SRO-1 of 2005, whereby Jammu and Kashmir Cooperative Societies Rules, 2001, were amended be acted upon and in other breath, petitioners question very power of the Government to frame rules including amendment incorporated vide Notification SRO-1 of 2005. In one breath, petitioners insist that Notification SRO-1 of 2005, whereby Jammu and Kashmir Cooperative Societies Rules, 2001, were amended be acted upon and in other breath, petitioners question very power of the Government to frame rules including amendment incorporated vide Notification SRO-1 of 2005. The power to make rules for conduct of election of the Members of Committee/Board squarely falls within scope of Clause xi sub-section 2 of Section 176 of Jammu and Kashmir Cooperative Societies Act, 1989, and challenge to the Rules on the ground that the government has exceeded the Rule making power given to it or exercised the power that did not belong to it, is bereft of any merit. For the reasons discussed, I do not find any merit in the writ petition. Petition is accordingly dismissed.