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2025 DIGILAW 217 (HP)

Dola Singh Mahant v. State of Himachal Pradesh

2025-02-27

AJAY MOHAN GOEL

body2025
JUDGMENT : Ajay Mohan Goel, J. Notice confined to respondents No. 1 to 4. Mr. Pushpender Jaswal, learned Additional Advocate General, accepts notice on behalf of respondents No. 1 to 4. 2. By way of this writ petition, the petitioners have prayed for the following substantive reliefs:- “i. That a writ in the nature of certiorari may very kindly be issued and impugned office order dated 16.12.2024 as contained in Annexure P-9 and impugned order dated 08.01.2025 as contained in Annexure P-10 and impugned office order dated 13.01.2025 as contained in Annexure P-11 may very kindly be quashed and set aside. ii. That a writ in the nature of mandamus may very kindly be issued thereby directing the respondents to allow the present managing committee to conduct elections as per schedule already submitted to the respondents.” 3. Brief facts necessary for the adjudication of this writ petition are that the elections for electing the Managing Committee of District Cooperative Union, Kullu, were held in the month of December, 2019, which term of the Managing Committee was to be of five years in terms of Rule 38(3) of the H.P. Cooperative Societies Rules 1971 as amended from time to time. The term of the Managing Committee was to come to an end on 30th December, 2024. In terms of the proviso to Rule 38(3) of the Rules (supra), if the outgoing Managing Committee fails to initiate the election process 90 days prior to completion of its tenure, the Registrar shall appoint an Administrator under Section 37 of the Act and the Administrator so appointed shall conduct the elections of the Managing Committee within six months of its appointment. 4. In the present case, admittedly the Managing Committee failed to initiate the election process 90 days prior to completion of its tenure. In these circumstances, by exercising the power conferred under the proviso to Rule 38(3) (supra), an Administrator was appointed and the Managing Committee was superseded. 5. 4. In the present case, admittedly the Managing Committee failed to initiate the election process 90 days prior to completion of its tenure. In these circumstances, by exercising the power conferred under the proviso to Rule 38(3) (supra), an Administrator was appointed and the Managing Committee was superseded. 5. Said act of appointment of the Administrator was assailed under Section 93 of the Cooperative Societies Act 1968 by the petitioners herein and in terms of Annexure P-6, order dated 20.11.2024, passed by the Joint Registrar (marketing) Cooperative Societies, Kasumpati, Shimla, HP, the appeal was allowed and the matter was remanded back to Deputy Registrar of the Central Division so that the parties could be heard in the matter by granting them an opportunity of being heard. 6. Primarily, the grounds raised in aforesaid appeal were that the delay in initiating the election process was explainable as it was on account of chronic illness of the Chairman of the Committee, yet, the Managing Committee was superseded by the Authority. 7. To cut the controversy short, in terms of order dated 16.12.2024, Annexure P-9, after giving an opportunity to the parties to submit their response, Deputy Registrar of the Central Division dismissed the contention of the applicants before it. This order was assailed by the aggrieved parties, i.e. present petitioners under Section 93 of the Cooperative Societies Act and in terms of the impugned order (Annexure P-10), dated 08.01.2025, the appeal was dismissed. 8. Learned Counsel for the petitioners though candidly admitted that the Managing Committee failed to initiate the election process, 90 days prior to completion of its tenure but he submitted that the word “shall” has to be interpreted in a manner which is not myopic, as has been done by the authorities and further as the delay was bonafide and explainable, therefore also, such harsh decision was not called for in the facts of the present case. 9. 9. On the other hand, learned Additional Advocate General submitted that there is no perversity in the order under challenge for the reason that when the statutory provisions are clear and unambiguous that the election process has to be initiated 90 days prior to completion of its tenure by the Managing Committee, and the Act does not contain any provision that some delay therein is condonable under any circumstance, the Authority concerned has no other option but to appoint the Administrator, as has been done in the present case and the order passed by the Appellate Authority dated 08.01.2025 accordingly calls for no interference. 10. I have heard learned Counsel for the petitioners as also learned Additional Advocate General and also carefully gone through the pleadings as well as documents appended therewith. 11. It is an admitted factual position that the Managing Committee failed to initiate election process 90 days prior to completion of its tenure. 12. Rule 38 of the Himachal Pradesh Co-Operative Societies Rules, 1971, which deals with the constitution of Managing Committee provides as under:- “ 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. (3) The terms of the Managing Committees constituted under sub-rule (1) shall be five years. “Provided that if outgoing managing committee fails to initiate election process 90 days prior to completion of its tenure, the Registrar shall appoint Administrator under section 37 of the Act and the Administrator so appointed shall conduct election of managing committee within six months of his appointment.” ………….…” 13. “Provided that if outgoing managing committee fails to initiate election process 90 days prior to completion of its tenure, the Registrar shall appoint Administrator under section 37 of the Act and the Administrator so appointed shall conduct election of managing committee within six months of his appointment.” ………….…” 13. Thus, a perusal of the proviso appended to Sub Rule (3) thereto demonstrates that if the outgoing Managing Committee fails to initiate election process 90 days prior to completion of its tenure, then the Registrar “ shall ” appoint an Administrator under Section 37 of the Act and the Administrator shall conduct the elections of the Committee within six months of its appointment. 14. This Court does not concur with the submission of learned Counsel for the petitioner that the word “ shall ” used in the proviso is not to be construed strictly. In fact, this Court is of the considered view that the very fact that the Legislature in its wisdom decided to use the word “shall” in the proviso demonstrates that the intent of the Legislature was very clear that in case Managing Committee failed to initiate election process 90 days prior to completion of its tenure, then the Registrar mandatorily has to appoint an Administrator under Section 37 of the Act. Nothing prevented the Legislature either to use the word “may” in the said proviso or further provide some leverage that in some circumstances, non-initiation of the election process 90 days prior to completion of tenure of the Managing Committee was condonable. In light of such statutory provisions, if any other interpretation to the word “shall” is given by this Court, then the same shall amount to re-writing of the statutory provisions. 15. As per Black’s Law Dictionary, 6th Edition, the word “shall” has been defined as under:- “Shall. As used in statutes, contracts, or the like, this word is generally imperative or mandatory. In common or ordinary parlance, and in its ordinary signification, the term "shall" is a word of command, and one which has always or which must be given a compulsory meaning, as denoting obligation. The word in ordinary usage means "must" and is inconsistent with a concept of discretion. People v. Municipal Court for Los Angeles Judicial Dist., 149 C.A.3d 951, 197 Cal.Rptr. 204, 206. The word in ordinary usage means "must" and is inconsistent with a concept of discretion. People v. Municipal Court for Los Angeles Judicial Dist., 149 C.A.3d 951, 197 Cal.Rptr. 204, 206. It has the invariable significance of excluding the idea of discretion, and has the significance of operating to impose a duty which may be enforced, particularly if public policy is in favour of this meaning, or when ad-dressed to public officials, or where a public interest is involved, or where the public or persons have rights which ought to be exercised or enforced, unless a contrary intent appears. People v. O'Rourke, 124 Cal. App.752, 13 P.2d 989, 992.” In terms of said definition also as used in statutes, contracts or the like, the word ‘shall’ is generally imperative or mandatory and in common or ordinary parlance, the term “shall” is a word of command and one which has always or which must be given a compulsory meaning as denoting obligation. 16. As far as the another contention raised by learned Counsel for the petitioner that no proper hearing was given initially when the Administrator was appointed is concerned, as it is a matter of record that after setting aside of the initial order vide Annexure P-6, dated 20.11.2024, opportunity was given to the petitioners and similarly situated persons to put forth their contentions by issuance of a show cause, therefore, it cannot be said that even the subsequent order is bad for want of adherence to the principles of natural justice. 17. In light of above observations, this Court does not find any merit in the present petition and further as there is no infirmity in the impugned order, the present petition is accordingly dismissed. 18. At this stage, learned Counsel for the petitioners submits that an observation be made that the election process for electing the new Managing Committee be taken to its logical conclusion as expeditiously as possible. He further submits that five months have already elapsed since the appointment of the Administrator. 19. 18. At this stage, learned Counsel for the petitioners submits that an observation be made that the election process for electing the new Managing Committee be taken to its logical conclusion as expeditiously as possible. He further submits that five months have already elapsed since the appointment of the Administrator. 19. In view of the fact that the Administrator is under mandate to hold the elections for the constitution of a fresh Managing Committee within six months of its appointment, it is hereby observed that the said mandate of law shall be adhered to by the Administrator by holding the elections within six months of its appointment so that the Managing Committee is constituted within the statutory period. Pending miscellaneous application(s), if any, also stand disposed of accordingly.