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2019 DIGILAW 895 (JHR)

Kameshwar Singh v. State Of Jharkhand

2019-04-22

SUJIT NARAYAN PRASAD

body2019
JUDGMENT 1. This writ petition is listed under the heading for orders for passing appropriate order in Interlocutory Application No.8737 of 2018 whereby and whereunder the petitioner has sought for a direction to amend the pleading, prayer and allow the addition of private respondent to extent as mentioned in Paragraphs 4, 6 as well as addition of prayer mentioned in Paragraph-5 of the instant interlocutory application. 2. The instant interlocutory application has been filed on the pretext that during the pendency of the writ petition, certain subsequent development has taken i.e. new body of society has been elected consisting of eight members including respondent and vice president vide order dated 25.04.2018 and therefore, the same being subsequent development the prayer for amendment of the pleading as well as prayer in the writ petition has been sought for. 3. Ms. Pooja Kumari, learned A.C. to S.C.-III, has clearly submits that the amendment sought for may be incorporated in the pleading as also the prayer to the writ petition may be allowed for proper adjudication of the issue involved in this case. 4. In view thereof and taking into consideration the aspect as has been enumerated in the interlocutory application and considering the fact that during the pendency, the election has been conducted and final result has been published by extending certificate to that effect by the competent authority on 25.04.2018, therefore, the amendment sought for is reasonable and has got direct bearing with the main prayer made in the writ petition, therefore, the same is being allowed as such the interlocutory application is treated to be the part of the writ petition. 5. Learned counsel for the petitioner has argued out the case at length on its merit, since the pleading is completed. 6. The writ petition is for quashing the order as contained in Memo No.869(6)/Ranchi dated 26.03.2018 issued by the Registrar, Cooperative Society, Ranchi, Jharkhand whereby and whereunder, in exercise of power conferred under Section 41 (1) of the Jharkhand Cooperative Society Act , one Anjani Prasad, Block Cooperative Extension Officer, Chas has been appointed as Administrator for conducting the election since according to the Registrar, Constitution of the ad-hoc Committee would incurr with financial burden upon the state exchequer and further under the provision of the amended Act, 2015, there is no provision to extend the period of ad-hoc Committee. 7. 7. It is the case of the petitioner that the petitioner/society has been constituted after getting certificate of registration by the competent authority, a dispute arose in the society with respect to its membership which led the member of society to approach before this Court by filling a writ petition being W.P.(C) No.3019 of 2017 and 1409 of 2017, both the cases have been heard together and this Court vide order dated 06.12.2017 discussing the factual aspects in detail, has directed the respondent to conduct the election of the society on the basis of the voter list in fair and transparent manner within a period of three months from the date of receipt/production of a copy of this order. 8. The registrar being the competent authority, after the order passed by this Court in the said writ petitions vide order dated 06.12.2017 has found that the ad-hoc Committee which was constituted in pursuance to the amended provision of the Act, 1935 has lost its force after expiry of the period of six months and as such appointed Administrator, in exercise of power conferred under Section 41 (1) of the Jharkhand Cooperative Societies Act, 1935 vide order dated 23.03.2018. The petitioner has approached to this Court by assailing the said decision of the Registrar which has been passed on 26.03.2018 (Annexure-3) inter alia on the ground that the Registrar has got no power to appoint an Administrator for conducting the election, rather he ought to have reconstituted the ad-hoc Committee in view of the provision of Jharkhand Cooperative Societies (Amended) Act, 2015 but instead of doing so, he has appointed an Administrator for conducting the election, therefore, the Registrar has exceeded his jurisdiction and acted, even though no power conferred to delegate the power to appoint the Administrator for conducting the election. 9. The respondents after being called upon by this Court, has filed counter affidavit wherein stand has been taken that there is no infirmity in the impugned order dated 26.03.2018 as because under the provision of Amended Act, 2015, there is no provision to appoint ad-hoc Committee after the period of six months or to extend its period, therefore, the Registrar has not committed any error in appointing the Block Cooperative Extension Officer, Chas, as Administrator to conduct the election in order to achieve the spirit and intent of the Act, 1935. Learned S.C. to Sr. Learned S.C. to Sr. S.C.-III while arguing the matter has drawn the attention of this Court about the order passed by the Co-ordinate Bench of this Court in W.P.(C). No.3019 of 2017 and W.P.(C). No.1409 of 2017 (Annexure-1) appended to the writ petition whereby and whereunder the issue raised was for quashing the order as contained in Memo No.484 dated 27.10.2016, issued by the Assistant Registrar, Cooperative Society, Chas, a Special General Body meeting was called on 31.10.2016 for conducting election of the Managing Committee of Adarsh Co- operative Housing Construction Society Limited, Bandhgora, Chas, has been stayed, this Court while disposing of the writ petition has directed the respondent to conduct the election on the basis of voter list containing the members admitted in the present Co- operative Society. Submission has been advanced that whatever has been done by the Registrar is in pursuance to the order passed by this Court in the aforesaid writ petition, she has further argued that, the issue which has been raised by the petitioner/society regarding the reconstitution of the fresh ad-hoc Committee, the statute does not confer the said power upon the registrar. The respondent-authorities, in pursuance to the order passed by this Court in W.P.(C) No.3019 of 2017 and 1409 of 2017, has conducted the election on 25.04.2018 which has been assailed by the petitioner by way of interlocutory application, which has been allowed treating it the part of the writ petition on the ground that since the entire election has been conducted under the Administrator who has been appointed by the Registrar vide order dated 26.03.2018, who while passing the order, has exceeded his jurisdiction, and therefore the entire election is vitiated in view of the fact that the appointment of administrator itself is illegal and improper and not in consonance with the provision of law. 10. Having heard the learned counsel for the parties and on appreciation of their rival submissions this Court before entering into the merit of the claim of the petitioner/society deem it fit and proper to refer certain provisions of the Jharkhand Co-operative Society Act, 1935 and the Amended Act 2015. 10. Having heard the learned counsel for the parties and on appreciation of their rival submissions this Court before entering into the merit of the claim of the petitioner/society deem it fit and proper to refer certain provisions of the Jharkhand Co-operative Society Act, 1935 and the Amended Act 2015. It is evident from the Co-operative Societies Act, 1935, which has been adopted by the State of Jharkhand that the Registrar has been conferred with the power to ensure the election of the Society under the provision of Section 41, power has been conferred upon him, in case of supersession of Managing Committee and Co-operative Society wherefrom it is evident that the Registrar can take its own decision depending upon the situation and recording the reasons of dissolving/superseding the Committee, if it come to his notice that the society after being elected, is found to be in mismanaging of the affairs, failed to sufficiently improve the affairs or is persistently making default or is negligent in the performance of the duties imposed on it by this Act, the Rule or the bye-laws of the registered societies provided that the certain circumstances, by recording the reasons in writing may extend the period of supersession for a further period not exceeding three months. The parliament has come out with an amendment i.e. 97 th Amendment Act of the Constitution of India, by virtue of that a new Article has been inserted into the Constitution of India i.e. Article 243 (Z) whereunder it contains that the provision of fixing the terms of the Managing Committee/Board of the Society to be five years from the date of election. The State of Jharkhand vide gazette notification dated 01.12.2015 (Annexure-2) has come out with an amendment under sub-section (1) of Section 41 of the Act, 1935 whereby and whereunder the following amendment has been incorporated as under:- "25. The State of Jharkhand vide gazette notification dated 01.12.2015 (Annexure-2) has come out with an amendment under sub-section (1) of Section 41 of the Act, 1935 whereby and whereunder the following amendment has been incorporated as under:- "25. Amendment in Sub-section (1) of Section 41 of the Jharkhand Co-operative Societies Act, 1935 shall be substituted by the following, namely:- (1) Notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months; Provided that if in the opinion of the Registrar, the Board of any registered society, where the state government has contributed to the share capital, has provided loan, or financial aid provided has been on Government guarantee may be superseded or kept under suspension in case, it- (i) is persistently making defaults, or (ii) is negligent in the performance of the duties imposed on it by this Act, the Rules or the bye-laws, or (iii) committed any act prejudicial to the interest of the cooperative society or its members, or (iv) there is stalemate in the constitution or functioning of the Board; or (v) the authority or body as provided in the act, rules and bye-laws has failed to conduct elections in accordance with the provisions of the act: The Registrar may, after giving opportunity to the managing committee to state its objection, if any, by order, with reasons in writing, supersede the Board of the Co- operative society for a period not exceeding six m onths and order that all or any of its members may be disqualified from being elected to the Board of the co-operative society for a period to be specified in the order, not exceeding five years, Registrar shall record every order passed under this section in writing and inform the concerned Co-operative society through registered post. Provided further that the board of any such co- operative society shall not be superseded or kept under suspension where there is no government shareholding or loan or financial assistance or any guarantee by the government. Provided that in case of co-operative society carrying on the business of banking, provisions of Banking Regulation Act, 1949 shall also apply. Provided also that in case of co-operative society carrying the business of banking the maximum period of dissolution shall be of one year. Provided that in case of co-operative society carrying on the business of banking, provisions of Banking Regulation Act, 1949 shall also apply. Provided also that in case of co-operative society carrying the business of banking the maximum period of dissolution shall be of one year. Provided that the dissolution of the Board of the co-operative society having banking operation shall be done in consultation with the Reserve Bank of India. In case of supersession of a board, the Administrator so appointed shall provide every possible help to conduct the election. This arrangement shall be an interim arrangement and the Administrator shall hand over the management of the society to the new board after election within the prescribed period. Provided that where government has not provided share capital or loan or financial assistance or any government guarantee and where the Co-operative Society fails to conduct elections before the expiry of the term of the board, the Registrar of the co-operative societies may order to convene a special general meeting of the members, for appointing an ad-hoc board for the purpose of conducting elections. Provided that the outgoing members and office bearers of Board shall not be included in ad-hoc Board for the purpose of conducting elections. Provided further that the term of ad-hoc board so appointed shall not exceed six months and the ad-hoc board so appointed shall provide every possible help to the Co- operative Society to conduct the election. This arrangement shall be an interim arrangement and such appointed ad-hoc board shall hand over the management of the society to the new board after election within the prescribed period." It is evident from the aforesaid amendment and the purpose which would be evident from the Amendment Act, 25 (1) no board shall be superseded or kept under suspension for a period exceeding six months. The Registrar has conferred with the power depending upon the situation with reasons in writing, supersede the board of the Cooperative Society for a period not exceeding six months and order that all or any of its members may be disqualified from being elected to the Board of Co-operative Society for a period to be specified in the order, not exceeding five years. The 4 th proviso speaks about the situation of super session of the board, the Administrator so appointed shall provide every possible help to conduct the election. The 4 th proviso speaks about the situation of super session of the board, the Administrator so appointed shall provide every possible help to conduct the election. This said arrangement shall be an interim arrangement and the Administrator shall handover the management of the society to the new board after election within the prescribed period. While the 6 th proviso provides that the situation where there is no financial assistance or any government guarantee and where the Co-operative Society fails to conduct elections before the expiry of the term of the board, the Registrar has conferred with the power and who may order to convene a special general meeting of the members, for appointing an ad-hoc board for the purpose of conducting elections. While 7 th proviso provides that the outgoing members of the office bearers of Board shall not be included in ad-hoc Board for the purpose of conducting elections. While 8 th proviso provides that the term of ad-hoc board so appointed shall not exceed six months and the ad-hoc board so appointed shall provide every possible help to the Cooperative Society to conduct the election. This arrangement shall be an interim arrangement and such arrangement and such appointed ad-hoc board shall handover the management of the society to the new board after election within the prescribed period. It is evident from the 8 th proviso that in case of constitution of Ad-hoc Committee, period shall not exceed six months in any case where the financial aid is being received by the Cooperative Society. 11. It is in this background of the legal position and the factual aspect as has been pleaded by the petitioner is to be examined as to whether the order passed by the Registrar by appointing the Administrator after expiry of the period of six months is justified or not ? 12. It is not in dispute that if there is no ambiguity in the statute, it is not the duty of the court of law to interpret it rather if there is any ambiguity in the law it can be interpreted by the court of law. 13. 12. It is not in dispute that if there is no ambiguity in the statute, it is not the duty of the court of law to interpret it rather if there is any ambiguity in the law it can be interpreted by the court of law. 13. The amended Act, 2015 is very much clear that there would be an Ad-hoc Committee to conduct the election and the period of said Committee would be only for a period of six months and in the meanwhile the election has to be conducted and charge is to be handed over in favour of the new body so that the Society may not have without any body or in the hand of the Ad-hoc Committee since in the proviso either under 5 th or 6 th the Constitution of India, the ad-hoc Committees are under the nature of interim arrangement while making the amendment the legislation is very much clear that within the period of six months the new body is to be elected. 14. The members of the Society have approached to this Court by filing the writ petition Nos. W.P.(C) No.3019 of 2017 questioning therein the decision of the State Government 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 Co-operative Housing Construction Society Limited, Bandhgora, Chas and in W.P.(C). No.1409 of 2017, issued by the Assistant Registrar, Co- operative Societies, Chas, whereby, a Special General Body meeting for conducting election of the office bearers of Adarsh Co- operative Housing Construction Society Limited, Bandhgora, Chas, scheduled to be held on 31.10.2016, has been stayed. It is evident from the order passed by the Coordinate Bench of this Court which is appended under Annexure-1 wherein the spirit of the amendment i.e. Article 243 (Z) of the Constitution of India has been taken note. It is further evident that the fact about the Constitution that the Ad-hoc Committee was also brought to the notice of the Court. It is further evident that the fact about the Constitution that the Ad-hoc Committee was also brought to the notice of the Court. This Court while disposing of the writ petition, has been pleased to observe by keeping into consideration the very purpose and spirit of the amendment contained under Article 243 (Z) (L) which provides that no board shall be suspended or got under suspension for a period exceeding six months, the object 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 prejudiced considering the said intent and spirit of the Act, direction has been passed upon the respondents to conduct the election on the basis of the voter list already prepared within three months from the date of receipt/production of the copy of the order. The said order was passed on 16.02.2016 while it has been informed to this Court that the Ad-hoc Committee was constituted on 29.03.2017 and the period of six months has expired on 29.09.2017 but though the said fact was within the knowledge of the petitioner and has been brought to the notice of this Court regarding the constitution of the ad-hoc Committee and the Court has passed the order directing the respondents to conduct the election within a period of three months from the date of receipt/production of the copy of the order, while considering the provision of Amended Act, 2015 whereby and whereunder the Ad-hoc Committee can only be constituted once as would be evident from the 8 th proviso wherein it has been provided that the term of Ad-hoc Board so appointed shall not exceed six months and the Ad-hoc Board so appointed shall provide every possible help to the Co-operative Society to conduct the election which does suggest that the Ad-hoc Committee would be constituted once and there cannot be 2 nd or 3 rd or 4 th Committee otherwise the very purpose, intent and spirit of the Amended Act, 2015 would be frustrated as because if there would be re-Constitution of Ad-hoc Committee then it can be of any numbers. Mr. Sumeer Saurabh, learned counsel for the petitioner has raised the issue that there is no bar in the Amended Act, 2015 for not reconstituting the Ad-hoc Committee and further there is no provision to appoint the Administrator to conduct the election. Mr. Sumeer Saurabh, learned counsel for the petitioner has raised the issue that there is no bar in the Amended Act, 2015 for not reconstituting the Ad-hoc Committee and further there is no provision to appoint the Administrator to conduct the election. The argument about no power in reconstitution of the Ad-hoc Committee cannot be accepted for the reason of the specific stipulation made in 8 th proviso to the Act, wherein it has been provided that the term of Ad-hoc Board so appointed shall not exceed six months the word "shall" word got significance otherwise there would be stipulation of the word "may" making it obligatory/directory and further for the reason that the very spirit of the amendment i.e. the election of the society to be conducted within six months would frustrate as because if the second Committee would come it will take further six months or third committee further 18 months, therefore, the intent and spirit for which the amendment has been incorporated by inserting Article 243 (Z) or 243 (Z) (L) would frustrate. 15. So far as the argument that there is no proviso of delegating the power upon the Administrator to conduct the election, there is no dispute that there is no such provision under the statute but the question is that the Registrar has been directed by the writ court in exercise of power conferred under Article 226 of the Constitution of India, passed in W.P.(C) No.3019 of 2017 with 1409 of 2017 whereby and whereunder the respondents have been directed to conduct the election within three months from the date of receipt/production of the copy of this order, even accepting what has been submitted by the learned counsel for the petitioner that there is no provision to appoint the Administrator but the question of expiry of the period of Ad-hoc Committee was within the knowledge of the petitioner since the period had already expired on 29.09.2017 while the writ court has passed order on 06.12.2017 but even though the direction has been passed therein directing the respondent to conduct the election within a period three months has been accepted by the petitioner without questioning it. 16. 16. The Registrar has acted in pursuance to the order passed by this Court in W.P.(C) No.3019 of 2017 with 1409 of 2017on 26.03.2018 and taking into consideration that there cannot be reconstitution or fresh constitution of ad-hoc committee, under the provision of Act, 2015 and as such in order to comply with the direction passed by this Court, the Registrar has passed the order on 23.06.2018 appointing an Administrator to conduct the election, therefore, it is by virtue of the order passed by this Court so action taken by the Registrar cannot be said to be improper and suffer from infirmity rather he has obeyed the order passed by this Court. 17. In view thereof and in the entirety of the facts and circumstances of the case, this Court is not inclined to interfere with the order passed by the Registrar. 18. Accordingly, the writ petition fails and is dismissed. 19. Interlocutory application being I.A. No. 8737 of 2018 also stands disposed of.