IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9491 of 2015 1. [ENTITY], S/o Late Jagan [ENTITY], R/o village + P.O. Shorampur, P.S. Janipur, District-Patna 2. [ENTITY], S/o Late Sadhu Rai, R/o- village + P.O. Shorampur, P.S. Janipur, District-Patna 3. [ENTITY], W/o Anup Kumar, R/o-village-Dharaichak, P.O. Shorampur, P.S. Janipur, District-Patna 4. [ENTITY], S/o-Late Nanhak Rai, village-Janipur, P.O. Shorampur, P.S. Janipur, District-Patna 5. [ENTITY], S/o Late Anant [ENTITY], R/o village-Nizampur, P.O. Shorampur, P.S. Janipur, District-Patna 6. [ENTITY], W/o Mina Manjhi, R/o village+P.O. horampur, P.S. Janipur, District-Patna Petitioner/s Versus 1. The [ENTITY] through its Principal Secretary, Co-operative Department, Government of Bihar, Patna 2. The [ENTITY] 3. [ENTITY] 4. The [ENTITY] 5. [ENTITY], in short "Shorampur PACS" under Phulwarisharif Block, District-Patna, through its PACS Manager 6. [ENTITY], S/o Late Saguni Sao, village-Adhpa, P.O. Shorampur, P.S. Janipur, District-Patna Respondent/s with Civil Writ Jurisdiction Case No. 10440 of 2015 [ENTITY] wife of Ram Chandra Yadav resident of village Chand-Pipar, P.S. Kishanpur, district Supaul, presently elected as Chairman, PACS, Chandpipar, Block- Saraigarh Bhaptiyahi, District Supaul. Petitioner/s Versus 1. The [ENTITY] through the Principal Secretary Department of Co-operative, Govt. of Bihar, Patna. 2. The [ENTITY]. 3. The [ENTITY]. 4. The [ENTITY]. 5. The [ENTITY]. 6. The [ENTITY] through its Chief Election Officer. 7. [ENTITY] son of late Mahesh Yadav, resident of village+P.O.- Chandpipar, P.S. -Kishanpur, district Supaul. 8. [ENTITY] wife of Janardan Prasad Yadav, resident of village+P.O.- Chandpipar, P.S. -Kishanpur, District Supaul. 9. [ENTITY] son of Satto mandal, resident of village+P.O.- Chandpipar, P.s - Patna High Court [CASE NUMBER] dt.17-08-2015 2 Kishanpur, District Supaul. 10. [ENTITY] wife of Ganesh Prasad Yadav 11. [ENTITY] son of Paitram Mandal, resident of village-Jarauli, P.O.- Chandpipar, P.S. -Kishanpur, District- Supaul. 12. [ENTITY] son of late Siyaram Mandal, resident of village-Kulipatti, P.O.- Chandpipar, P.S. -Kishanpur, District- Supaul. 13. [ENTITY] son of [ENTITY], resident of Village+P.O.- Chandpipar, P.s - Kishanpur, district Supaul. 14. [ENTITY] wife of Bacha Prasad Mandal, resident of Village-Kulipatti , P.O.- Chandpipar, P.S. -Kishanpur, district Supaul. Respondent/s with Civil Writ Jurisdiction Case No. 11665 of 2015 1. [ENTITY] son of Rajkishore Prasad, resident of village- Pakri, P.S.- Masaurhi, District- Patna 2. [ENTITY] son of Jagdeo Paswan, resident of Jagpura Bigha, P.S.- Masaurhi, District- Patna 3. Lalan Prasad son of Subbalal Prasad, resident Pakri, P.S.- Masaurhi, District- Patna 4. Smt. [ENTITY] Wife of Kundan Paswan, Resident of Jagpura Bigha, P.S.- Masaurhi, District- Patna 5. Smt. [ENTITY] wife Nagendra [ENTITY], resident of Dariyapur, P.S.- Masaurhi, District- Patna 6. Smt. [ENTITY] wife of Ram Niwas Prasad, resident of village + P.O.- Bhaishwan, P.S.- Masaurhi, District- Patna 7. [ENTITY] son of Late [ENTITY], resident of village- Tetai, P.S.- Masaurhi, District- Patna Petitioner/s Versus 1. The [ENTITY] through the Principal Secretary, Department of Cooperative, Government of Bihar, Patna 2. The Registrar Cooperative Societies, Bihar, Patna 3. The Bihar State Election Authority, 32, Harding Road, Patna through its Chief Election Officer 3. The Additional Registrar Cooperative Societies, Bihar, Patna 4. Smt. [ENTITY] wife of [ENTITY] 5. Smt. [ENTITY] Wife of [ENTITY] 6. [ENTITY] son of [ENTITY] 7. [ENTITY] son of [ENTITY] All residents of village- Pakri, P.S.- Masaurhi, District- Patna 8. [ENTITY] wife of [ENTITY], resident of village- Pakri, P.S.- Masaurhi, District- Patna 9. [ENTITY] son of [ENTITY], Village- Jagpura Bigha, P.S.- Masaurhi, District- Patna 10. [ENTITY] through its Paid Manager, At + P.O.- Bhaishwan, P.S.- Masaurhi, District- Patna Respondent/s with Patna High Court [CASE NUMBER] dt.17-08-2015 3 Civil Writ Jurisdiction Case No. 1[SECTION]71 of 2015 [ENTITY], son of Sri Krishna [ENTITY], resident of village-Parasiya, Police Station-Kochas, District-Rohtas at Sasaram Petitioner/s Versus 1. The [ENTITY] through the Principal Secretary, Department of Cooperation, Bihar, Patna 2. The Bihar Election Authority through its Chief Election Officer, Bihar, Patna 3. The Chief Election Officer, Bihar, Patna 4. The Registrar, Cooperative Society, Bihar, Patna 5. The District Magistrate, Rohtas at Sasaram 6. The District Cooperation Officer, Rohtas at Sasaram 7. The Block Development Officer-cum-Returning Officer, Block-Kochas, District-Rohtas at Sasaram 8. The Kochas Primary Agriculture Credit Society through its Manger, Kochas, District-Rohtas at Sasaram 9. [ENTITY], son of [ENTITY], resident of village-Debriya, Police Station-Kochas, District-Rohtas at Sasaram 10. [ENTITY], son of [ENTITY], resident of village-Khairi, Police Station-Kochas, District-Rohtas at Sasaram 11. [ENTITY], son of late [ENTITY], resident of village-Adilapur, Police Station-Kochas, District-Rohtas at Sasaram 12. [ENTITY], wife of [ENTITY], resident of village-Adilpur, Police Station-Kochas, District-Rohtas at Sasaram 13. [ENTITY], son of Sri [ENTITY], resident of village-Baradi, Police Station-Kochas, District-Rohtas at Sasaram 14. [ENTITY], son of Late [ENTITY], resident of village- Tetariay, Police Station-Kochas, District-Rohtas at Sasaram 15. [ENTITY], son of [ENTITY], resident of village-Tetariay, Police Station- Kochas, District-Rohtas at Sasaram 16. [ENTITY], wife of [ENTITY], resident of village-Parasiya, Police Station- Kochas, District-Rohtas at Sasaram 17. [ENTITY], wife of [ENTITY], resident of village-Andwa, Police Station-Kochas, District-Rohtas at Sasaram 18. [ENTITY], wife of [ENTITY], resident of village-Debriya, Police Station-Kochas, District-Rohtas at Sasaram Respondent/s with Civil Writ Jurisdiction Case No. 4245 of 2015 [ENTITY] son of Late [ENTITY], resident of village- Padariya, Block- Suryapura, Police Station- Suryepura, District- Rohtas. Petitioner/s Versus 1. The [ENTITY]. 2. The Joint [ENTITY]. 3. The [ENTITY]. 4. The District Co-operative Officer, Rohtas, Sasaram. Patna High Court [CASE NUMBER] dt.17-08-2015 4 5. The Block Development Officer, Block- Suryapura, District- Rohtas (Sasaram). 6. The [ENTITY]. 7. [ENTITY] wife of [ENTITY] R/o village- Kalani P.S. Suryrpura, District- Rohtas. 8. [ENTITY] son of [ENTITY] R/o village- Kalani P.S. Suryrpura, District- Rohtas. 9. [ENTITY] son of Late [ENTITY] R/o village- Kalani P.S. Suryrpura, District- Rohtas. 10. [ENTITY] wife of [ENTITY] R/o village- Kalani P.S. Suryrpura, District- Rohtas. 11. [ENTITY] wife of [ENTITY] R/o village- Kalani P.S. Suryrpura, District- Rohtas. Respondent/s with Civil Writ Jurisdiction Case No. 6330 of 2015 [ENTITY] wife of [ENTITY], resident of village - Mangarpal, Nauran, P.O. - Tarba Mangarpal, P.S. - Dariyapur, District - Saran at Chapra. Petitioner/s Versus 1. The [ENTITY] through the Principal Secretary, Department of Cooperative, Government of Bihar, Patna. 2. The Registrar, Cooperative Societies, Bihar, Patna. 3. The Joint Registrar, Cooperative Societies, Saran Division, Chapra. 4. The District Cooperative Officer, Saran at Chapra, District - Saran at Chapra. 5. The [ENTITY] Chapra. 6. [ENTITY] son of Late [ENTITY], 7. [ENTITY], son of Late [ENTITY], 8. [ENTITY], son of Sri [ENTITY], 9. [ENTITY], wife of Sri [ENTITY], 10. [ENTITY], wife of [ENTITY], respondent nos. 6 to 11 are resident of village - Mangarpal, Nauran, P.O. - Tarba Mangarpal, P.S. - Dariyapur, District - Saran at Chapra. Respondent/s with Civil Writ Jurisdiction Case No. 12455 of 2015 [ENTITY] son of Suresh [ENTITY], resident of village-Kanker, P.S. Baren, District-Aurangabad Petitioner/s Versus 1. The [ENTITY] through the Secretary, Department of Co-operative, Government of Bihar, Patna 2. The Principal Secretary, Department of Co-operative, Government of Bihar, Patna 3. The Registrar Co-operative Societies Bihar, Patna Patna High Court [CASE NUMBER] dt.17-08-2015 5 4. The District Co-operative Officer, Aurangabad 5. The Block Co-operative Extension Officer, Navi Nagar, Aurangabad 6. The [ENTITY] through its Chief Election Officer, Bihar, Patna Respondent/s Appearance: (In [CASE NUMBER]) For the Petitioner/s : Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate For the Respondent/s : Mr. [ENTITY], SC-11 (In CWJC No.10440 of 2015) For the Petitioner/s : Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate For the Respondent/s : Mr. [ENTITY], SC-5 Mr. [ENTITY], Advocate (In CWJC No.11665 of 2015) For the Petitioner/s : Mr. [ENTITY], Advocate For the Respondent/s : Mr. [ENTITY], SC-7 Mr. [ENTITY]., AC to SC-7 Mr. [ENTITY], Advocate (In CWJC No.1[SECTION]71 of 2015) For the Petitioner/s : Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate For the State : Mr. [ENTITY], SC-21 For B.S.E.A. : Mr. [ENTITY] Advocate For respondent no. 9 to 13 & 18: Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate (In [CASE NUMBER]) For the Petitioner/s : Mr. [ENTITY], Advocate For the Respondent/s : Mr. [ENTITY], G.P. -13 (In [CASE NUMBER]) For the Petitioner/s : Mr. [ENTITY], Advocate Ms. [ENTITY], Advocate Mr. [ENTITY], Advocate For the State : Mr. [ENTITY], GP-1 For State Election Authority: Mr. [ENTITY] For the respondent nos. 6 to 11: Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate Mr. [ENTITY], Advocate (In CWJC No.12455 of 2015) For the Petitioner/s : Mr. [ENTITY], Advocate For the Respondent/s : Mr. [ENTITY], GP-4 Mr. [ENTITY], AC to G.P.-4 CORAM: HONOURABLE MR. JUSTICE [ENTITY] Date: 17-08-2015 Patna High Court [CASE NUMBER] dt.17-08-2015 6 In these batch of writ petitions whereas the petitioners in [CASE NUMBER] are aggrieved by the order dated 05.05.2015 / 19.05.2015
of the Registrar, Co-operative Societies, Bihar, Patna in [CASE NUMBER] whereby the revision petition filed by the petitioners praying for a declaration for holding the election of the entire Managing Committee of Primary Agriculture Credit Co- operative Society (hereinafter referred to as the PACS), Shorampur, Block Phulwarisharif in the district of Patna has been rejected, the petitioners in the remaining set of writ petitions are aggrieved by the orders passed in the respective cases by the Registrar whereby the respective co-operative societies of which the petitioners are members / chairman have been dissolved in exercise of powers vested in the Registrar under [SECTION] of the [ACT] (hereinafter referred to as the Act) and the rules framed thereunder inter alia on grounds of vacancies to the extent of more than half of the strength of the Managing Committee having been caused by virtue of resignation of the membership.
Since the issue raised in these set of writ petitions centre around the same issue regarding the extent of power vested in a Registrar under [SECTION] of the Act to order for dissolution of the society where the vacancies caused by resignation exceed half the strength of the society and whether the provision saves any power with the Registrar of keeping such of the members / office bearers of Patna High Court [CASE NUMBER] dt.17-08-2015 7 the society out of such dissolution who have not chosen to resign, that these writ petitions have been heard analogous with the view to final disposal at the stage of admission itself.
Briefly enumerating, the facts involved in the respective writ petitions are as follows:-
As I have already pointed out, [CASE NUMBER] has been filed by the six members of the Shorampur PACS who have resigned from the elected membership of the society comprising of 12 elected posts including that of a Chairman and one ex officio Secretary / Paid Manager. The election of the Managing Committee was held on 10.11.2014 and result was declared on 11.11.2014 electing the petitioners as members and respondent no. 6 as Chairman. The petitioners resigned from their elected membership which was received on 24.11.2014 by the Chairman. An application was filed before the Registrar with a prayer to dissolve the Managing Committee and for holding fresh election as the Managing Committee had been reduced to a minority, a copy of which is placed at Annexure-2 to the writ petition. On [SECTION].12.2014 the District Co- operative Officer requested the Secretary, State Election Authority to hold election of the 11 members of the Managing Committee. Since the request by the District Co-operative Officer to hold election of the members of the Managing Committee before the State Election Authority did not include the post of the Chairman, hence the Patna High Court [CASE NUMBER] dt.17-08-2015 8 petitioners moved in revision before the Registrar, Co-operative Society in [CASE NUMBER]. The matter was heard and the orders were reserved on 05.5.2015 and on 19.5.2015 vide order present at Annexure-6 that the revision petition was disposed of by the Registrar Co-operative Societies finding no fault in the request of the District Co-operative Officer present in his letter dated [SECTION].12.2014 whereunder a request had been made for holding election in respect of 11 members of the Managing Committee. On 20.5.2015 vide order bearing Memo No. 978 the District Co-operative Officer in exercise of powers vested under [SECTION] of the Act appointed Shri [ENTITY], District Co-operative Extension Officer as Administrator for the society. However, in view of the order passed by the Registrar in the revision petition of the petitioners on 19.5.2015 that the order of appointment of an Administrator dated 20.5.2015 was recalled vide order bearing Memo No. 105 dated 04.6.2015. The petitioners being aggrieved are before this Court.
[CASE NUMBER] has been filed by the Chairman of the Chand-Pipar PACS, Block- Saraigarh Bhaptiyahi in the district of Supaul being aggrieved by the order bearing Memo No. 546 dated 4.6.2015 issued by the Chief Election Officer, Bihar State Election Authority Act and order bearing Memo No. 734 dated 8.6.2015 passed by the District Co-operative Officer, whereby the elections to the Managing Committee of the society in question has been declared Patna High Court [CASE NUMBER] dt.17-08-2015 9 inter alia on grounds that 7 elected members of the society had resigned. The resignation of the 7 elected members is present at Annexure-2 series to the writ petition.
[CASE NUMBER] has been filed by 7 members of Bhaiswan PACS in the district of Patna being aggrieved by the order dated [SECTION].5.2015 / 25.5.2015 of the Additional Registrar, Co-operative Societies, Bihar, Patna in Case No. 4[SECTION] of 2014 whereby in consideration of the fact that 10 elected members of the society had appeared before the Registrar, Co-operative Societies on 10.3.2015 to submit their resignation and which had reduced the Managing Committee to a minority that it was held superseded until the election of a new Managing Committee and by the same order a direction was issued for appointment of an Administrator.
In CWJC No. 1[SECTION]71 of 2015, the petitioner who is the Chairman of Laheri PACS, has questioned the notification bearing no. 686 dated 7.7.2015 whereunder the election to the Managing Committee of the society has been announced in view of the order dated 10.3.2015 passed in [CASE NUMBER] whereunder the Registrar Co-operative Society has dismissed the revision preferred by the petitioner questioning the order of the District Co- operative Officer dated 06.2.2015 dissolving the society in consideration of the resignation of six elected members of the 10 members Managing Committee of the Society.
Patna High Court [CASE NUMBER] dt.17-08-2015 10 [CASE NUMBER] has been filed by the Chairman of Shivobahar PACS, Block-Suryapura in the district of Rohtas who has questioned the order dated 27.1.2015 of the District Co-operative Officer whereby he has dissolved the Managing Committee and appointed an Administrator in exercise of powers vested under [SECTION] of the Act.
[CASE NUMBER] has been filed by the Chairman of Mangarpal PACS in the district of Saran at Chapra being aggrieved by the order dated 29.5.2014 passed by the respondent Joint Registrar, Co-operative Society in [CASE NUMBER] as contained in Annxure-5 whereby the Society has been dissolved under [SECTION] of the Act in view of the fact that six elected members of the 11 members Managing Committee had resigned.
[CASE NUMBER] has been filed by the Chairman of the Kanker PACS, District-Aurangabad being aggrieved by the order bearing Memo No. 863 dated 12.12.2015 of the District Co-operative Officer whereby in consideration of the fact that of the 8 members of the Managing Committee, 5 elected members had resigned and thus the society has been reduced to a minority that an Administrator was appointed under [SECTION] of the Act.
All these writ petitioners are further aggrieved by the notification of the State Election Authority bearing Letter No. 547 Patna High Court [CASE NUMBER] dated 04.6.2015 whereunder the election programme for holding the elections to the societies in which the Managing Committee had been dissolved by virtue of resignations of more than half of the members of the society, has been notified.
I have already indicated at the outset that whereas the rest of the writ petitions seek to question the wisdom of the Registrar in ordering for dissolution of the Managing Committee upon resignation of more than half of the members of the Managing Committee in exercise of powers vested under [SECTION] of the Act, [CASE NUMBER] has been filed by the aggrieved members of one of such society in whose case no such order had been passed rather the Registrar has merely directed for holding election against the vacant posts of the Managing Committee caused by the resignation of the members.
Since the majority of the writ petitions are on the issue whether an order of dissolution of Managing Committee passed on account of resignation of more than half of the members of the Managing Committee would not ipso facto also result in setting aside the election of such of the members / office bearers of the society who had not resigned while [CASE NUMBER] supports such action while questioning a contrary decision taken in the case of the said writ petition, I would be first considering the arguments of the counsel questioning the decision of the Registrar who while dissolving the Patna High Court [CASE NUMBER] dt.17-08-2015 12 Managing Committee on account of resignation of more than half of the elected members has also issued direction for holding election to the entire Managing Committee including post of such of the members / office bearer who had not resigned.
Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY], Mr. [ENTITY] and Mr. [ENTITY] have appeared for such of the petitioners who are Chairman / members of the respective society and are aggrieved by the decision insofar as the order of dissolution has resulted in setting aside their respective election and consequently are being forced to contest another election by virtue of resignation of more than half of the members of the society.
The sum and substance of the argument of learned counsel questioning the decision of the respondent authorities in relegating even such members / office bearers of the society who had not resigned from their respective posts, to face election is that although the Registrar is vested with the powers of dissolution of a Managing Committee in the circumstances set forth in [SECTION] & [SECTION] of the Act but a dissolution of the Managing Committee for the reasons so mentioned would not mean setting aside the election of even those members / office bearers of the Managing Committee who had not resigned. According to the learned counsel appearing for the petitioners even though the Managing Committee would stand Patna High Court [CASE NUMBER] dt.17-08-2015 13 dissolved upon being reduced to a minority, that would not have any impact on the election of the members / office bearers who do not choose to resign and it is only such of the posts which have fallen vacant upon resignation of the members which would have to be thrown opon for election in view of the overriding provisions of [SECTION] of the Act which was amended under [ACT]. It is the contention of the learned counsel for the petitioners that if the vacancies occur when the term of the Board is less than half of the original term then the same is to be filled up by nomination and in case the term is more than half then these vacancies are to be filled up through a by-election. Mr. [ENTITY] learned counsel appearing on behalf of the petitioners in [CASE NUMBER] relying upon a Bench decision of this Court reported in 2009(4) PLJR 1042 [ENTITY] vs. [ENTITY] has submitted that a Bench of this Court had an occasion to consider a situation where the election to a society had resulted in electing a minority committee which did not constitute a coram. A decision was taken by the Department / State Election Authority to hold fresh election for the entire Managing Committee including the post in which the election had been held and which was questioned by the elected member before this Court. The Bench in consideration of the provision of [SECTION], [SECTION] and [SECTION] of the [ACT] framed under the Act and bye-laws 25 and 27 of the [ACT] [CASE NUMBER] dt.17-08-2015 14 Societies in question, was of the opinion that it is only the vacancies remaining which needs to be filled up by fresh election and that the law did not prescribe that even such of the elected members would lose their election if 50 per cent level is not achieved in any election. With reference to the Bench decision in the case of [ENTITY] (supra) it was sought to be canvassed by Mr. [ENTITY] that the attempt of the court would be to give a purposeful construction to the provision which would effectuate the object of the Act and not to negate its intendment. Mr. [ENTITY] referring to the 97th constitutional amendment introducing [SECTION] in the [ACT] submits that the importance of the co-operative movement has been recognized and a purposeful interpretation has to be given to the provisions of [SECTION] read with [SECTION] of the Act. Mr. [ENTITY] referring to the [SECTION] of the Act submits that special provisions have been incorporated in relation to Primary Agriculture Credit Co-operative Society and [SECTION] BF only speaks of supersession. According to Mr. [ENTITY] [SECTION] of the Act not only relates to dissolution of a Managing Committee but even the provisions of [SECTION] reads as such. It was submitted that although the circumstances for inviting order of supersession, suspension and dissolution may be distinctly provided but its effect would be the same. Mr. [ENTITY] concluded his argument by referring to the [SECTION] of the Act to submit that the proviso itself provides for Patna High Court [CASE NUMBER] dt.17-08-2015 15 restoration of management and which would mean that it is only those vacancies which have occurred due to resignation which has to be put up for election and not those elected members whose membership / office bearers did not resign.
Mr. [ENTITY] taking over the arguments from Mr. [ENTITY] submitted that the proviso may be relatable to [SECTION] of the Act but it would not be applicable in situations arising from [SECTION]. Learned counsel with reference to the definition of the Board provided under [SECTION], member provided under [SECTION], officers provided under [SECTION] and office bearer provided under [SECTION] submits that the office bearers and the officers have been distinctly defined though they form a part of the Managing Committee. According to Mr. [ENTITY] the term of the Board has provided under [SECTION] the Act as five years and the term of the office bearers and the members of the Board is co-terminus with the term of the Board. He thus submits that even though the consequence of resignation of more than half of the members of the Managing Committee would result in a dissolution of the Managing Committee but that would not ipso facto result in cancellation of election of other elected members / office bearers who have not chosen to resign and whose term would be guided by [SECTION] of the Act which has an overriding effect over other provisions of the Act. He submits that [SECTION] of the Act amended vide Act 6 of Patna High Court [CASE NUMBER] dt.17-08-2015 16 2013 begins with a non obstante clause and gives a five years period to all elected members / office bearers of the Board and which cannot be reduced upon resignation of half of the members of the Managing Committee. With reference to the provisions of [SECTION] of the Act he submits that although clause(a) thereof specifically refers to the office bearers but clause(b) does not make any such reference meaning thereby the status of the office bearers remains unaffected by the resignation of the half of the members of the Managing Committee. He submits that it is to cater to such circumstances that the amendments were made in [SECTION] of the Act to provide for election to the vacancies so caused where the term of the Board remained more than half of the original term and in other cases to fill up the vacancies caused, by nomination.
In support of his submission, learned counsel has relied upon the following decisions:
(i) AIR 1952 SC 324 (Shamrao vs. the District Magistrate) ; paragraph-12
(ii) (2008) 3 SCC 279 ([PRECEDENT])
(iii) [PRECEDENT])
(iv) AIR 1959 SC 4[SECTION] ([PRECEDENT])
(v) (2008) 9 SCC 648 ([PRECEDENT]); pagraph-55 and 57
(vi) (2011) 5 SCC 729; paragraph-52 Mr. [ENTITY] and Mr. [ENTITY] have also argued on the same lines and their submissions would only bear repetition of the arguments already noted above.
Patna High Court [CASE NUMBER] dt.17-08-2015 17 Mr. [ENTITY] appearing in [CASE NUMBER] has submitted that even when an order for appointment of Administrator has been passed under [SECTION] of the Act but no order of dissolution has been passed.
The arguments questioning the decision of the statutory authorities of dissolution and the decision of the State Election Authority to hold election for the entire Managing Committee has been contested by Mr. [ENTITY] appearing for the petitioner in [CASE NUMBER] and Mr. [ENTITY] appearing for the private respondents in [CASE NUMBER] and Mr. [ENTITY] appearing for the private respondents in [CASE NUMBER] as well as counsel for the State and the State Election Authority.
Mr. [ENTITY] leading the argument has submitted that [SECTION] of the Act explains the circumstances in which the Managing Committee can be dissolved and the resignation by more than half of the members is one such condition found at clause (b) of the provision. He submits that the moment a Managing Committee is dissolved it means that the life has been taken out of the Managing Committee and nothing survives. According to Mr. [ENTITY] even if some of the office bearers may not have resigned but the consequences of dissolution would effect their posts as well. Mr. [ENTITY], with reference to the writ petitioners so represented by him, submits that where the Managing Committee itself stood dissolved by Patna High Court [CASE NUMBER] dt.17-08-2015 18 the resignation of more than half of the members of the Managing Committee, there was no scope to direct for holding of election in respect of only such of the vacancies which had been caused by resignation and not for the entire committee. Referring to orders placed at Annexure-9 of the writ petition it was contended that whereas in other similar placed cases the order of dissolution was passed and even in the present case an Administrator had been appointed by the District Co-operative Officer under [SECTION] of the Act vide Annexure-7 but the said order was recalled subsequently on 04.6.2015 in the light of the order passed by the Registrar disposing of the revision application of the petitioners on 19.5.2015 impugned at Annexure-6 to the writ petition. He submits that the word dissolution by itself means wiping out the life of the Committee as a whole and could only lead to a fresh election of the entire committee. Contesting the arguments of the petitioners in relying upon [SECTION] of the Act to save the elected members and chairman who had not resigned, it was submitted that [SECTION] would not have any such impact where the identity of the Managing Committee itself gets wiped out. With reference to the judgment of a Single Judge rendered in [CASE NUMBER] ([ENTITY]) placed at Annexure-4, he submits that the learned Single Judge while interpreting [SECTION] of the Act had upheld the decision of the Registrar to dissolve the Managing Committee and Patna High Court [CASE NUMBER] dt.17-08-2015 19 appoint an Administrator where 7 members out of 12 members of Managing Committee had resigned. He submits that the judgment of the learned Single Judge was affirmed by the Division Bench in LPA No. 14[SECTION] of 2012. Referring to a Division Bench judgment of this Court reported in [CASE NUMBER] he submits that the word dissolution has been explained.
Mr. [ENTITY] while opposing the writ petitioners in [CASE NUMBER] submits that [SECTION] of the Act was a consequence of the 97th Amendment to the [ACT]. Referring to [SECTION] ZJ he submits that the term of the members and office bearers of the Board is co-terminus with the term of the board and it is only where any casual vacancy arises and the term of the Board is less than half that the same is to be filled up by nomination while in other casual vacancies occurring where the term of the Board exceeds half of the original term, it has to be filled up by a by-election. He submits that the provision of [SECTION] of the Act has been framed to fill up the casual vacancies occurring during the existence of the Managing Committee but not where the very identity of the Managing Committee is wiped out under an order of dissolution passed under [SECTION] of the Act. With reference to the provisions of [SECTION] he submits that the provisions relating to the issue of dissolution is in two parts and [SECTION] of the Act relates to circumstances where the functioning of the society is Patna High Court [CASE NUMBER] dt.17-08-2015 20 affected due to mal functioning of the Managing Committee warranting an order of suspension / supersession at the discretion of the Registrar. He submits that on the other hand [SECTION] of the Act is in distinct circumstances where half of the members of the Managing Committee choose to resign from the Managing Committee thus reducing it to a minority. He submits that the moment a majority of the members of the Managing Committee resign, there is no option for the Registrar but to dissolve the Managing Committee. Mr. [ENTITY], referring to a decision of this Court reported in AIR 1990 Patna 6 (Vaidya [ENTITY] vs. State) has submitted that it was held that where the Co-operative Societies is silent on any issue then an answer to the circumstances can be searched under the [ACT]. He submits that just as a dissolution of parliament leads to a fresh election, the same would follow also in the present case and no sooner a Managing Committee is dissolved, whether or not any elected member or office bearer remain to resign, he would also face dissolution. Learned counsel has referred to a decision of the Supreme Court reported in AIR 2003 SC 87:(2002) 8 SCC [SECTION]7 which is a matter arising out of presidential reference in the Gujarat Assembly Election matter and with particular reference to paragraph- 53 and 54 of the judgment he submits that the term dissolution has been explained to mean bringing to an end any legislative body. He submits that [SECTION] of the Act is a provision merely to cater Patna High Court [CASE NUMBER] dt.17-08-2015 21 to casual vacancies and where the vacancies would exceed half, the only consequence is dissolution.
Learned counsel for the State have supported the impugned action in the light of the statutory provisions.
Mr. [ENTITY], learned counsel with reference to the [SECTION] of the Act submits that the moment the provision refers to constitution of a new Managing Committee, it would mean a new Managing Committee as a whole.
Mr. [ENTITY] appearing for the private respondent in [CASE NUMBER] has supported the decision of the State Election Authority to go in for fresh election and relying upon the judgment in Gujarat Assembly case (supra) he submits that there is no room for any confusion.
I have heard learned counsel for the parties and I have perused the materials on record. I have already discussed the issue at the outset and although extensive arguments have been advanced by counsel supporting and opposing the impugned action, the only issue which would fall for consideration before this Court is whether despite a dissolution taking place under [SECTION] of the Act by virtue of the circumstances discussed therein, any elected post of a member or an office bearer of the Managing Committee, who does not choose to resign, gets saved. The second issue which falls for consideration is whether the provision of [SECTION] of the Act as Patna High Court [CASE NUMBER] dt.17-08-2015 [SECTION] amended in 2013 would come to the rescue of such of the members / office bearers who though come within the mischief of dissolution but since they have not chosen to resign, a dissolution would not affect their respective elections.
The members and the office bearers of a Managing Committee owe their existence to the term of the Managing Committee as is manifest from [SECTION] of the [ACT] as well under [SECTION] of the Act. The provision very eloquently provides that the term of the members and office bearers of the Board shall be co-terminus with the Board meaning thereby that the term of the members / office bearers of the Managing Committee would be five years or until the existence of the Board. To avoid any confusion, I would clarify that the term Board as defined under [SECTION] of the Act means the Board of Directors or the Governing Body or the Managing Committee of a Co-operative Society. The substantive provisions of [SECTION] of the Act provides that the term of the elected members / office bearers of the Board would be five years and shall be co-terminus with the term of the Board which by itself conceives of an eventuality where the term of the Board may be curtailed for reasons explained under [SECTION] of the Act. The reasons can be due to supersession or dissolution but the effect is the same and the Managing Committee gets wiped out and so ends the term of the members / officer bearers constituting Patna High Court [CASE NUMBER] dt.17-08-2015 [SECTION] the Managing Committee. Although in my opinion, Clause-(a) and
(b) of [SECTION] of the Act have no different connotation and clause(a) which provides for an eventuality resulting from resignation of the majority of members / office bearers of the Managing Committee is fully catered to by the eventuality present at clause (b) but in either of the situation the result is the same and a dissolution of the Managing Committee would take in its fold even those elected members / office bearers of a Managing Committee who have not chosen to resign. Though the argument of learned counsel appearing for the petitioners in relying upon the second proviso to [SECTION] of the Act to save the election of the members / office bearers who do not choose to resign but are made to face dissolution by reason of vacancy caused by resignation of more than half of the members of the Managing Committee or for other reasons appears very attractive and appropriately reasonable but I am afraid that is not the legislative intendment reflected from the statutory provisions of [SECTION] of the Act which gives no such indication nor does the provisions relating to dissolution proceeds to save the election of any of such member / office bearer of the society. On the contrary the [SECTION] of the Act very clearly speaks about a constitution of newly elected Managing Committee and which would obviously include the post of the office bearers as well as the members of the Managing Committee who do not choose to resign. The Supreme Patna High Court [CASE NUMBER] dt.17-08-2015 24 Court in Gujarat Assemble case (supra) at paragraph-53 of the judgment has explained the distinction between the term dissolution and prorogation to mean that whereas dissolution brings a legislative body to an end and terminates its life, prorogation on the other hand, only ends a session unless it is co-incident with the end of a legislative term. It is explained that prorogation unlike dissolution does not affect the life of the legislative body which may continue until it is brought to an end by dissolution. [SECTION] of the Act elaborates the circumstances where the term of the Managing Committee of a society can be curtailed. The provision falls under [SECTION] which rightly reads as Dissolution of Managing Committee. [SECTION] of the Act confers discretionary power on the Registrar to curtail the term of an elected Managing Committee where the Managing Committee of a society has been making persistent defaults or has been negligent towards its duty or has worked against the interest of the society or has brought about a stalemate in the functioning of the committee and when the Registrar has been empowered to order for supersession of the society as well as to disqualify the elected members from contesting any election for next five years. Similarly [SECTION] of the Act empowers the Registrar to order for dissolution of a Managing Committee where it has been reduced to a minority either due to resignation of majority of members and office bearers or due to vacancies caused by any reason Patna High Court [CASE NUMBER] dt.17-08-2015 25 whatsoever. The statutory provisions though vests discretion in the Registrar to dissolve a Managing Committee of a society in such circumstances by use of the word may but in my opinion, the effect of the word may in the present context would have to be interpreted as shall for no sooner that a Managing Committee is reduced to a minority there is hardly any option available to the Registrar but to dissolve the society and the moment an order of dissolution is passed, it ends the life of the Managing Committee and takes into fold even such of the members and office bearers who have not chosen to resign. Any other interpretation to the provision would be reading into the provision and supplying Casus omissus Mr. [ENTITY] while relying upon the judgment of this Court in [ENTITY] (supra) came very near in drawing analogy therefrom but in my opinion the judgment relied upon was in circumstances where a Committee was yet to be constituted due to the numbers falling below the coram and when this Court held that it is only the vacant posts which needs an election and not the entire committee but insofar as the present case is concerned the effect of dissolution is wiping out the committee as a whole.
Although in some of the cases there have been arguments regarding no formal order of dissolution having been passed but in my opinion that is only a technicality for the moment more than half of the members of the society have resigned, the dissolution becomes Patna High Court [CASE NUMBER] dt.17-08-2015 26 automatic and the order passed by the Registrar is only a completion of such formality.
Before parting on the subject, I cannot restrain myself in observing that in some of the cases it is within months of constitution of the Managing Committee, that resignations have followed resulting in dissolution of the Managing Committee. I would wonder whether this mechanism would subserve the laudable object envisaged in the Co-operative movement. If a mere resignation of half of the members would result in dissolution of a Managing Committee, its life would always be at a threat and would be kept at tenterhooks by members with vested interest and the reasons may not realistically be for the well being of the society. When [SECTION] was incorporated in the [ACT] under the 97th Amendment it was with a laudable object of promoting the Co-operative movement and for its democratic functioning at the grass root level. In my opinion, whereas [SECTION] of the Act may be a circumstance leading to a dissolution but clause (b) is a handle in the hands of the disgruntled members of the Managing Committee to be used the moment the functioning of the Committee is not to their liking and the reasons may again not be strictly in the interest of the Cooperative.
These observations are for consideration by the State Government to ponder over the issue and take remedial measures to ensure that the life and term of a Managing Committee is not held Patna High Court [CASE NUMBER] dt.17-08-2015 27 ransom with a group of persons with vested interest.
In view of the discussions on the issue so contested and for the reasons aforementioned [CASE NUMBER], [CASE NUMBER], CWJC No. 1[SECTION]71 of 2015, [CASE NUMBER], [CASE NUMBER] and [CASE NUMBER] are dismissed.
Let notice be issued to respondent nos. 5 and 6 in [CASE NUMBER] for which requisites under ordinary course as well as registered cover with A/D be filed within one week, failing which the application shall stand dismissed without further reference to the Bench.
Put up [CASE NUMBER] after service of notice / appearance of the private respondents whichever is earlier under the heading For orders for fixing the date of hearing in the admission matter.
([ENTITY], J) S.Sb/-