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2017 DIGILAW 2106 (JHR)

Ram Naresh Prasad v. State Of Jharkhand

2017-12-06

RAJESH SHANKAR

body2017
ORDER Rajesh Shankar, J. - W.P.(C) No. 3019 of 2017 has been filed for quashing the notice dated 23.05.2017, issued under the signature of the Co-operative Extension Officer-cum-Election Officer, Adarsh Co-operative Housing Construction Society Limited, Bandhgora, Chas (respondent No.6) whereby, a Special General Body meeting was called on 12.06.2017 for conducting election of the Managing Committee of Adarsh Cooperative Housing Construction Society Limited, Bandhgora, Chas. 2. W.P.(C) No. 1409 of 2017 has been filed for quashing Memo No. 484 dated 27.10.2016, issued by the Assistant Registrar, Co-operative Societies, Chas whereby, a Special General Body Meeting for conducting election of the office bearers of Adarsh Cooperative Housing Construction Society Limited, Bandhgora, Chas, scheduled to be held on 31.10.2016, has been stayed. 3. Both these writ petitions arise out of the election dispute of Adarsh Co-operative Housing Construction Society Limited, Bandhgora, Chas and as such the same are being heard and disposed of together by this common judgment. Since W.P.(C) No. 1409 of 2017 was filed against the order whereby, the election of the Adarsh Cooperative Housing Construction Society Limited, Bandhgora, Chas was stayed and subsequently, a Special General Body Meeting was convened for conducting the election, which gives rise to filing of W.P. (C) No. 3019 of 2017, the said writ petition is taken up as the lead case. 4. The factual background of the case, as stated in W.P.(C) No. 3019/2017, is that Adarsh Co-operative Housing Construction Society Limited, Bandhgora, Chas [hereinafter referred to as ''the said Society''] is a registered co-operative society and the last election of the said Society was held on 03.10.2010. As per Section 14 of the Jharkhand Cooperative Societies Act, 1935 (hereinafter referred to as ''the Act, 1935''), the tenure of the elected members of the Society is three cooperative years and as such the tenure of the said Society ended on 31.03.2013, which was extended till 31.12.2013. In the meantime, Ninety-seventh (97th) Constitutional Amendment was brought into force and Article 243ZJ was incorporated in the Constitution of India fixing the term of the Managing Committee/Board of the Society to be 5 years from the date of the election. In the meantime, Ninety-seventh (97th) Constitutional Amendment was brought into force and Article 243ZJ was incorporated in the Constitution of India fixing the term of the Managing Committee/Board of the Society to be 5 years from the date of the election. The State of Jharkhand, vide Gazette Notification dated 01.12.2015, notified the Jharkhand Cooperative Societies (Amendment) Act, 2015 and a provision has been made that 50% seat of the Managing Committee/Board shall be reserved for the women members out of which two seats shall be reserved for the Scheduled Caste or Scheduled Tribe women of every Co-operative Society with a further provision that the term of the office of the elected members of the Board and its office bearers shall be five years from the date of the election. The election of the Society was notified on 05.08.2013 treating the term of the Managing Committee/Board of the Co-operative as three years, which was put to challenge by filing the writ petition being W.P.(C) No. 5673 of 2013. During the pendency of the writ petition, the term of five years of the Board got completed and as such on 01.10.2015, the charge of the Board of the said Society was handed over to the Administrator. Finally, the writ petition being W.P.(C) No. 5673 of 2013 was disposed of on 27.11.2015 being infructuous due to efflux of time, as the Managing Committee of the said Society had already completed more than five years with an observation that the dispute as to whether the fresh election of the office bearers of the co-operative societies should be held for three years or five years in view of the Amendment Act, 2015, any notification for fresh election would be issued in consultation with the Secretary, Department of Co-operative Society, Government of Jharkhand, who shall take a decision in the light of the Amendment Act, 2015. Pursuant to the order passed in W.P.(C) No. 5673 of 2013 dated 27.11.2015, the respondent No.2 issued Memo No. 1907 dated 09.08.2016 whereby, it was decided that the period of elected members of the said Society will be five years and 50% members of the said Society will be women. Thereafter, the respondent No.6 issued notice vide Memo No. 01 dated 21.09.2016 whereby, the provisional voter list of the said Society was published also including the names of those persons, who were inducted during the period of supersession. Thereafter, the respondent No.6 issued notice vide Memo No. 01 dated 21.09.2016 whereby, the provisional voter list of the said Society was published also including the names of those persons, who were inducted during the period of supersession. The respondent No.4 vide letters dated 28.09.2016 and 05.10.2016, directed the respondent No.5 that only those members will have the voting right, who have become the members of the said Society till 31.03.2013 and, accordingly, directed to conduct the election of the Society as per the said direction. However, the respondent No.6 prepared the voter list without following the direction of the respondent No.4 and as such the respondent No.3 vide letter No. 2596 dated 26.10.2016, issued letter to the respondent No.5 directing him to ensure the compliance of the direction of the respondent no.4. Thus, the respondent No.5 vide Memo No. 484 dated 27.10.2016, stayed the election and issued a direction that the election will be held only on the basis of the voter list of those persons, who were included as member of the said Society till 31.03.2013. The respondent No.5 also submitted the entire documents before the respondent No.3, who directed the respondent No.5 vide letter No. 3037 dated 16.12.2016 to conduct the election of the said Society as per the direction of the respondent No.4 contained in letters dated 28.09.2016 and 05.10.2016. Thereafter, an ad-hoc Committee was constituted for conducting the election, but the respondent Nos. 5 and 6 again issued notice dated 23.05.2017 whereby, it was decided that the election of the said Society would be conducted on 12.06.2017 on the basis of the voter list earlier prepared on 30.09.2016 and on the basis of the list of the candidates dated 20.10.2016, which contained the names of those persons, who were inducted during the period of supersession, which gives rise to filing of the writ petition being W.P.(C) No. 3019/2017. 5. The learned counsel for the petitioner submits that in another writ petition being W.P. (C) No. 1409 of 2017, a counter affidavit has been filed by the State-respondents wherein specific stand has been taken that the election of the said Society would be conducted on the basis of the voter list containing the names of only those persons, who became the members of the said Society till 31.03.2013 and now the State-respondents cannot deviate from their own stand. The persons, who have been included as the members of the said Society after completion of three years'' tenure of the Managing Committee on 31.03.2013, cannot be allowed to participate in the election process, as inclusion of their names in the voter list is illegal. It is further submitted that the State-respondents have acted in violation of the provisions of the Act, 1935 and 2015. The order contained in memo No. 484 dated 27.10.2016 passed by the respondent No.5 has been superseded by letter No. 3037 dated 16.12.2016 issued by the respondent No.3 to the extent of conducting the election as soon as possible. However, letter No. 3037 dated 16.12.2016 issued by the respondent No.3 did not clarify as to whether the members inducted after 31.03.2013 would be treated as the valid members to get entitled for casting their votes in the election and as such the petitioner has challenged the schedule of election dated 23.05.2017 published by the respondent No.6. Letter No. 585 dated 28.09.2016, letter No. 621 dated 05.10.2016 and letter No. 268 dated 19.04.2017, issued by the respondent No.4, clearly indicate that the tenure of erstwhile Managing Committee of the Co-operative Society ended on 31.03.2013, thus, the members inducted in the said Society before the said date would only be entitled to vote in the election. The respondents misconstrued the order dated 27.11.2015 passed by this Court in W.P.(C) No. 5673 of 2013, as on perusal of the said order, it would appear that this Court has never decided the issue as to whether the election of office bearers of the Cooperative Society is to be held in three years or five years. Thus, the subsequent decision taken by the respondents allowing the members, who have been inducted in the Cooperative Societies after 31.03.2013, is illegal. 6. Mr. Dipak Kumar, learned counsel appearing on behalf of the petitioner of W.P.(C) No. 1409/2017, submits that in the similar circumstance, the election of Bokaro Steel Employees Co-operative Society was conducted on 16.05.2016 on the basis of the voter list prepared as on 31.03.2016. It is further submitted that the respondent No.4 has adopted dual standard in the case of the present Cooperative Society vis-a-vis the Bokaro Steel Employees Co-operative House Construction Society Ltd. and in this regard, the respondent No.3 vide letter No. 1423(6) dated 19.05.2017 issued a show cause notice to the respondent No.4. It is further submitted that the respondent No.4 has adopted dual standard in the case of the present Cooperative Society vis-a-vis the Bokaro Steel Employees Co-operative House Construction Society Ltd. and in this regard, the respondent No.3 vide letter No. 1423(6) dated 19.05.2017 issued a show cause notice to the respondent No.4. The said show cause notice also mentions about the personal interest shown by the Joint Registrar (respondent No.4) in the affairs of the Co-operative Society in question. The respondent No.3 in the said letter dated 19.05.2017 has, in fact, clearly objected the earlier directions issued by the respondent No.4 to get the election of the Co-operative Society conducted on the basis of the voter list prepared as on 31.03.2013. The respondent No.3 has also specified in the said letter dated 19.05.2017 that the election is to be conducted in terms with the provision of Rule 21-I [in Hindi as 21(Jh)(2)] of the Jharkhand Cooperative Societies Rules, which makes it clear that the concerned Cooperative Society has to submit the voter list, as prepared on the last date of the preceding co-operative year. The office bearers of the Cooperative Societies continued to hold their offices w.e.f. 24.10.2013 by virtue of the order of stay passed by this Court in W.P.(C) No. 5673/2013 and, thereafter, completed five years of their tenure as per the provisions of 97th Constitutional Amendment. They relinquished their offices w.e.f. 01.10.2015 and, thereafter, the Administrator was appointed by the respondent No.3 taking charge of the affairs of the Co-operative Society. If at all any new member has been inducted in the Co-operative Society, they are only the heirs/legal representatives or the subsequent purchasers of the land/houses of the existing members and as such there is no illegality in the same. 7. Learned S.C (L&C) appearing on behalf of the State submits that the tenure of the elected member for the Managing Committee of the Co-operative Societies shall be for five years from the last election. It is further submitted that in the counter affidavit filed on behalf of the respondent Nos. 7. Learned S.C (L&C) appearing on behalf of the State submits that the tenure of the elected member for the Managing Committee of the Co-operative Societies shall be for five years from the last election. It is further submitted that in the counter affidavit filed on behalf of the respondent Nos. 2, 3 & 5 in W.P.C No. 1409 of 2017, the stand of the respondents that the tenure of the Managing Committee of the said Society shall be three co-operative years is in the context of the election which was to be held on 12.11.2013 for which the notification was published on 05.08.2013 and not in the context of the election to be held on 31.10.2016. The respondent No.2 issued Memo No. 1907 dated 09.08.2016 in the light of the order passed in W.P.(C) No. 5673 of 2013 whereby, it was decided that the tenure of the elected member for the Managing Committee of the cooperative society shall be fixed for five years starting from the date of election. The Administrator of the said Society handed over a voter list of 584 members as per Rule 21 of the Rules, 1959 including the names of the members admitted till 31.03.2016 and after disposal of the objection, a final voter list of 589 members including the names of the writ petitioner Sri Ram Naresh Prasad and four others were published and, thereafter, the voter list was forwarded to the Administrator to issue notice to the voters for convening a Special General Meeting. On 19.05.2017, the respondent No.3 directed the respondent No.5 to complete the election process of the said Society and, thereafter, the respondent No.5 issued election programme directing the respondent No.6 to take action accordingly. The respondent No.6 thus issued notice for election and letter No. 366 dated 31.05.2017 deploying one Sri Subhash Chandra Mandal, Senior Audit Officer, Cooperative Society, Dhanbad as an Observer to conduct the election of the said Society on 12.06.2017 as per the by-laws and the provisions of the Rules, 1959. 8. Heard the learned counsel for the parties and perused the materials available on record. Both the writ petitions are related to the election dispute of Adarsh Co-operative Housing Construction Society Limited, Bandhgora, Chas. The last election in the said Society was held on 03.10.2010 and the Managing Committee was constituted for three years as per Section 14 of the Act, 1935. Both the writ petitions are related to the election dispute of Adarsh Co-operative Housing Construction Society Limited, Bandhgora, Chas. The last election in the said Society was held on 03.10.2010 and the Managing Committee was constituted for three years as per Section 14 of the Act, 1935. In the meantime, Ninety-seventh (97th) Constitutional Amendment was brought into force and Article 243ZJ was introduced in the Constitution of India to fix the term of the elected member of the Board/Managing Committee and office bearer as five years from the date of the election. The State of Jharkhand vide Gazette Notification dated 01.12.2015, notified the Act, 2015 and in terms thereof, the office of the elected members of the Board and its office bearers was also fixed as five years from the date of the election. The election of the said Society was earlier notified on 05.08.2013, which was challenged in the writ petition being W.P.(C) No. 5673 of 2013. The said writ petition was disposed of on 27.11.2015 observing, inter alia, that the same has became in fructuous due to efflux of time, as the Managing Committee of the said Society had already completed more than five years and further, the Secretary, Department of Co-operative, Government of Jharkhand was directed to take decision in the matter of the tenure of the members of the Board and the office bearers in the light of the Act, 2015. Thereafter, the respondent No.2 issued Memo No. 5673 of 2013 whereby it was decided that the tenure of the elected member for the Managing Committee of the co-operative society shall be fixed for five years starting from the date of election. Subsequently, the voter list was prepared wherein the members, who were admitted after 31.03.2013 (the initial date of supersession of the Board), were also included as voters, which has been challenged by the petitioner of W.P.(C) No. 3019/2017 on the ground that since the tenure of the Managing Committee was for three years, the Committee automatically got dissolved on 31.03.2013 and as such the members who were admitted in the Society after 31.03.2013, cannot be included in the voter list. 9. By way of the Constitution (Ninety Seventh Amendment) Act, 2011, Part IXB has been inserted in the Constitution of India with the heading The Cooperative Societies dealing with the provisions of the Co-operative Societies. 9. By way of the Constitution (Ninety Seventh Amendment) Act, 2011, Part IXB has been inserted in the Constitution of India with the heading The Cooperative Societies dealing with the provisions of the Co-operative Societies. Article 243ZT of the Constitution of India deals with the effect of the amendment to any of the laws of the States, which are inconsistent with the amended provisions. Article 243ZT reads as follows: "243ZT. Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less." 10. On perusal of the aforesaid provision, it appears that even after coming into force of the 97th Constitutional Amendment, the related law enforced in the States before the said Constitutional Amendment was held valid till the State Legislature amends the law or till the expiration of one year from the date of commencement of the 97th Constitutional Amendment, whichever is earlier. In the present case, the factual context is that the Managing Committee/Board of the said Society was constituted for the period from 03.10.2010 till 31.03.2013 as per the prevalent law existing at that time. However, during the valid tenure of the Managing Committee, Article 243ZT was introduced in the Constitution of India with effect from 12.01.2012 by reasons of which the term was extended from three years to five years. The existing law of the State was to be valid until amended or repealed by the State Legislature or expiration of one year, whichever is earlier i.e. till 12.01.2013. Admittedly, the State Legislature of Jharkhand did not amend the Act, 1935 till 12.01.2013 and only by reasons of the Act, 2015 (notified in the Gazette on 01.12.2015), it was provided that the term of the Managing Committee of any cooperative society will be of five years as per the mandate of the 97th Constitution Amendment. Thus, the period from 12.01.2013 to 30.11.2015, no amendment was carried out in the Act, 1935 by the State Legislature of Jharkhand in consonance with the provision of Article 243ZJ and 243ZT of the Constitution of India. Thus, the period from 12.01.2013 to 30.11.2015, no amendment was carried out in the Act, 1935 by the State Legislature of Jharkhand in consonance with the provision of Article 243ZJ and 243ZT of the Constitution of India. The election of the society which was notified on 05.08.2013, was challenged before this Court in W.P.(C) No. 5673 of 2013 and, thereafter, the notification was stayed by reason of the interim order passed in the writ petition. During the pendency of the said writ petition, the term of five year of the Board got completed and as such on 01.10.2015, the charge of the said society was handed over to the Administrator. Since the managing committee functioned till completion of five years term, it cannot be said that the Managing Committee automatically got superseded after completion of three years when at that very time there was no State provision in existence dealing with the terms of the Managing Committee. Article 243ZK provides that the election of a Board shall be conducted before the expiry of the term of the Board so as to ensure that the newly elected members of the Board assume the office immediately on the expiry of the office of the members of the outgoing Board. Article 243ZL provides that no Board shall be suspended or kept under suspension for a period exceeding six months. The object behind the introduction of these provisions is that no Board should remain non-functional for a long time so that the interest of the members of the society may not get jeopardized. Much reliance has been put by the petitioner of W.P.(C) No. 3019/2017 to the various communications made by the respondent no. 4 whereby it was directed to conduct the election on the basis of the voter list prepared till 31.03.2013. However, it transpires from the record that the respondent no. 4 was issued show cause by the respondent no. 3 vide letter No. 1423(6) dated 19.05.2017 wherein it was alleged that the respondent no. 4 has taken dual standard in the matter of the election of the similarly situated co-operative societies, namely, Bokaro Steel Employees Co-operative Society vis-a-vis the present society. 4 was issued show cause by the respondent no. 3 vide letter No. 1423(6) dated 19.05.2017 wherein it was alleged that the respondent no. 4 has taken dual standard in the matter of the election of the similarly situated co-operative societies, namely, Bokaro Steel Employees Co-operative Society vis-a-vis the present society. It was pointed out in the letter dated 19.05.2017 that the election of the society was to be conducted on 16.05.2016 on the basis of the voter list as on 31.03.2016 but a contrary stand has been taken with regard to the present society. Thus, the earlier communications of the respondent no. 4 will not help the cause of the petitioner of W.P.(C) No. 3019/2017. 11. Moreover, Rule 21-I of the Bihar Co-operative Societies Rules, 1959 provides that before the end of a co-operative year, a list shall be prepared for the co-operative society for which election is due in the immediate succeeding year and for that purpose the concerned society shall submit a vote list as on the last day of the preceding cooperative year to the Election Officer. In the present case also, as per the averments of the State-respondents, after the disposal of the writ petition being W.P.(C). No. 5673/2013, the voter list was prepared including the members admitted till 31.03.2016 i.e. the preceding cooperative year for the election to be held in the year 2017, which was in consonance with the provisions of Rule 21-I of Rule 1959. Thus, I do not find any infirmity in preparation of the vote list. 12. Under the facts and circumstances of the case, W.P.(C) No. 3019 of 2017 is dismissed and W.P.(C) No. 1409 of 2017 is disposed of with a direction to the respondents to conduct the election on the basis of the voter list containing the members admitted in the present Cooperative Society till 31.03.2016, in fair and transparent manner within a period of three months from the date of receipt/production of a copy of this order. 13. Consequently, all the pending interlocutory applications in both these writ petitions also stand disposed of.