IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4239 of 2009 Date of decision: 14th October, 2010 Baljinder Singh and another … Petitioners Versus State of Punjab and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. R.K. Sharma, Advocate for the petitioners. Ms. Ambika Luthra, Assistant Advocate General, Punjab for respondents No.1 to 4. None for respondent No.5. Mr. M.S. Virk, Advocate for Mr. S.S. Salar, Advocate for respondents No.6 to 9. Mr. Harit Sharma, Advocate for respondents No.10 to 14. KANWALJIT SINGH AHLUWALIA, J. Baljinder Singh and Gurmeet Singh are members of Bhurthala Mander Cooperative Agricultural Service Society Ltd., Bhurthala Mander, District Sangrur (hereinafter referred to as, ‘the Society’). On 29th September, 2008 a meeting of managing committee of the Society was held and it was resolved therein that the term of managing committee is due to expire on 2nd November, 2008, therefore, election of the managing committee be held on 16/17th October, 2008 and an election programme be issued. In the resolution, it was recommended that for election of nine members of the managing committee, a general- house-meeting of the members be held on 16th October, 2008 and after following the procedure of inviting nomination papers, objections thereto, scrutiny of the same and withdrawal of the nomination papers, voting be Civil Writ Petition No.4239 of 2009 held on 17th October, 2008. To give effect to this resolution, vide Annexure P-2 on 13th October, 2008 the Assistant Registrar, Cooperative Societies, Malerkotla appointed an Inspector of Cooperative Societies to act as a Returning/Presiding Officer. Four members of the Society filed a petition (Annexure P-3) before the Deputy Registrar, Cooperative Societies, Sangrur with a prayer that the election scheduled to be held on 16/17th October, 2008 be stayed. Those four members have been impleaded as respondents No.6 to 9 to the present petition. In the petition (Annexure P-3) they had pleaded that there were 608 members of the Society. Three villages namely, Bhurthala Mander, Jathomajra and Rurkee Khurd fall in the area of operation of the Society and they constitute an electoral college for election of managing committee of the Society. They had made a grievance that earlier, an election was conducted zone-wise and that a 15 days notice was necessary to hold an election of members of the managing committee. It was further stated that managing committee of the Society had illegally enrolled 41 voters on the basis of deposits at their own will therefore, they be excluded to vote in the election. The Deputy Registrar, Cooperative Societies, Sangrur on 15th October, 2008, i.e. a day before holding of the general-house- meeting and two days before the scheduled election, vide order (Annexure P-4), stayed the election. On 22nd December, 2008 vide Annexure P-6, a communication was issued by the Deputy Registrar, Cooperative Societies, Sangrur to the Assistant Registrar, Cooperative Societies, Malerkotla, in which it was stated that the stay which was granted on 15th October, 2008 has been vacated and election of managing committee of the Society be conducted in accordance with the rules after constituting the zones. On 9th March, 2009 vide order (Annexure P-7), the petition for stay of election was dismissed. 2 Civil Writ Petition No.4239 of 2009 In the present writ petition, a two fold grievance has been made. It is urged that the communication (Annexure P-6) dated 22nd December, 2008 so far as it states that election be held according to the rules after constituting the zones, be set aside and a direction be issued to hold the election of managing committee of the Society from the stage when the election programme (Annexure P-2) was issued on 13th October, 2008. In other words, it is canvassed before this Court that to hold election, the electoral college should remain as it existed on 13th October, 2008 and the very fact that the election could not be held, should be construed to disentitle those members of the Society to vote, who acquired membership during the interregnum period, i.e. from 13th October, 2008 till today. During the pendency of the writ petition, an application bearing Civil Misc. No.18351 of 2009 was filed by those persons, who acquired membership of the Society during the pendency of the writ petition, to be impleaded as respondents to the writ petition. It was contended by the writ petitioners that the newly inducted members cannot participate in the election and they shall not have the right to vote, therefore, they ought not to be impleaded as respondents. The application was allowed and the newly inducted members were impleaded as respondents No.10 to 14. In the written statement filed to the writ petition, the newly added respondents No.10 to 14 have stated that during the pendency of the writ petition, about 200 persons have been enrolled as members of the Society and any fresh election programme, which is to be prepared, cannot affect the rights of the newly enrolled members, therefore, they are fully eligible to participate in the election process. The controversy to be determined by this Court lie in a very narrow compass, as to whether those members, who were inducted and 3 Civil Writ Petition No.4239 of 2009 enrolled after issuance and stay of the election programme (Annexure P-1), are eligible to participate in the election process or not? To facilitate the answer to this question, counsel for the petitioners has relied upon a judgment rendered by a Division Bench of this Court in ‘Om Parkash Mann and another v. The State of Haryana and others’ 2001(1) PLJ 7 to contend that once the election process has been set-in and if for one reason or the other the election has been postponed, the fresh members who have been introduced cannot be included in the voters list. It was held in the judgment rendered in Om Parkash Mann’s case (supra) that the voters list cannot be altered midway of the election programme/process and the election should be held on the basis of voters list prepared and available when election process was set-in. It will be apposite here to reproduce para Nos. 4 and 5 of the judgment rendered in Om Parkash Mann’s case (supra), which read as under: “4. In view of the statement made by Mr.S.S.Dalal and copy of the orders of the Registrar, Cooperative Societies fixing the date and election programme, the writ petition impliedly becomes infructuous as the petitioners are mainly seeking the relief to holding the election of the Managing Committee of the Cooperative Bank. However, it has been contended by Mr.H.S. Hooda, Senior Advocate appearing for the petitioners that the respondent cannot bring a new voters list as the election process has already been set in on the basis of the existing voters’ list which was only postponed for one reason or the other. He has referred to the provisions of Section 28 of the Haryana Cooperative Societies Act and also the decision in the case of Sardar Mohammad v. The State of Haryana and others, 1977 Punjab Law Journal 12. Mr. S.S. Dalal learned counsel appearing for respondent No.4 on the other hand states that since after the expiry of the tenure of the existing Board of Directors, the Registrar had appointed the Administrator 4 Civil Writ Petition No.4239 of 2009 who has introduced the fresh members in the Society, who are required to be included in the voters’ list, a new voters’ list has been prepared and the earlier list cannot be the basis of the election. 5. We have considered the rival contentions. Sub- Section (2) of Section 28 of the Haryana Cooperative Societies Act, 1984 postulates as under: ‘(2) The election process once started shall not be postponed and disputes, if any, pertaining to the election, shall be entertained after the completion of the election process, in accordance with the provisions of this Act. Explanation – The election process shall be deemed to have started from the date of the order of the Registrar fixing the date of election.’ Admittedly, after the Registrar announced the holding of the election by his order Annexure P-1 and the election programme (Annexure P-2), the election process was set in as envisaged in Section 28 of the Haryana Cooperative Societies Act, the Registrar, Cooperative Societies thereafter ceased functus officio to issue any further direction in the matter which under the law came to be in the hands of the Election Officer. We need not go into the detail and merits of the postponement of date of the election in this case. However, it is not shown in any way if the earlier election programme was annulled and fresh elections were ordered. If the date of election now fixed is in respect of the same election process which was set in by the Registrar as per Annexure P-1, presumably it has to be on basis of the same voters list. Moreso, it has been settled by a Division Bench of this Court in the case of Sardar Mohammad (supra) held that election process once set in cannot be postponed. If that is so after the postponement, if any, the voters list cannot be altered midway of the election programme/process.” 5 Civil Writ Petition No.4239 of 2009 To similar effect is the judgment rendered by a Division Bench of this Court in ‘Amrik Singh and another v. State of Punjab and others’ 2001(1) PLJ 65, wherein the Bench has further placed reliance upon ‘K.Shantharaj and another v. M. Nagaraj and others’ AIR 1997 SC 2925 to say that the Administrator cannot enroll new members and the members so enrolled cannot vote in the election. The relevant portion of the judgment cited in K.Shantharaj’s case (supra) reads as under: “5. It would be clear from the language of these provisions that the Administrator or special officer, subject to control of any of the functions of the society, and in the interest of the society take such action as is necessary for proper functioning of the society as per law. He should conduct elections as is enjoined thereunder. In other words, he is to conduct election with the members as on the roles and by necessary implication, he is not vested with power to enroll new members of the Society. 6. … … … ‘The members who are enrolled during the pendency of the writ petition shall not participate in the election and the Administrator shall notify the election with fresh calendar of events and hold the election with the members who were then in existence when W.P. No. 16378/92 was filed. The General Body or the Board of Directors elected by the General Body shall consider the application of the new members enrolled by the Administrator keeping in view the criteria or the eligibility contemplated under Bye-law 15 and dispose of their application in accordance with the Bye-law after due consideration’.” To fortify the above said submission, further reliance has been placed upon ‘Sardar Mohammad v. State of Haryana and others’ 1977 PLJ 12, wherein a Division Bench of this Court has held that the Registrar has no authority in law to postpone the election. 6 Civil Writ Petition No.4239 of 2009 Relying upon the above said observations, counsel for the petitioners has contended that if the Deputy Registrar, Cooperative Societies, Sangrur could not stay the election then the necessary inference is that the election is to be held as the same was to be conducted on 17th October, 2008. Thus, those members, who were enrolled thereafter, cannot be permitted to participate in the election. To controvert the arguments advanced by counsel for the petitioners, Mr.Harit Sharma, Advocate for the newly impleaded respondents No.10 to 14 has relied upon a judgment rendered by another Division Bench of this Court in ‘The Dhurkot Ransinh Cooperative Agricultural Service Society Limited and others v. The Registrar, Cooperative Societies, Punjab and others’ (Civil Writ Petition No.2666 of 1995) decided on September 9, 1996, wherein the Bench considered the legality of induction of the voters, who were enrolled as members after the expiry of the term of managing committee of the Society. It was contended before the Division Bench that the Administrator had no jurisdiction to enroll new members and such enrollment of the members was violative of Section 17 of the Punjab Cooperative Societies Act, 1961 (hereinafter referred to as, ‘the Act’) read with rule 16A of the Punjab Cooperative Societies Rules, 1961, as these members had not conducted any business transaction with the Society. The Bench considered the import of Section 15B of the Act, which was inserted by the Punjab Cooperative Societies (Amendment) No.8 of 1978. Section 15B of the Act reads as under: “15B. Provision for admission as members in the case of certain societies: (1) Notwithstanding anything to the contrary contained in this Act:- (i) Every person eligible for admission as a member of a co-operative society shall be deemed to have been admitted as a member of the society from the date of receipt 7 Civil Writ Petition No.4239 of 2009 of his application for such admission in the office of that society; (ii) The Registrar may, of his own motion or on a complaint made by the committee of the society or any aggrieved person, by an order determine that such a person is not eligible to be a member of the society and on such determination that person will cease to be a member; Provided that no such order shall be made unless the person already admitted as a member is given an opportunity of being heard and where an order is to be made on the basis of a complaint it shall be made within a period of thirty days of the receipt thereof. (2) The provisions of this Section shall apply only to a Primary Land Mortgage Bank and to a co-operative society having one of its object advancing of loans for the purpose of raising of crops or seasonal agricultural operations.” After considering the newly added Section 15B of the Act, the Division Bench observed as under: “The non-obstante clause contained in Section 15B(1) has the effect of overriding the other provisions contained in the ‘Act of 1961’ and, therefore, for the purpose of admission of a Cooperative Society as member of a Primary Land Mortgage Bank and a Cooperative Society having advancing of loans for the purpose of raising of crops or seasonal agricultural operation as one of the objectives, the provisions contained in Section 15B will be applicable notwithstanding anything otherwise contained in other provisions of ‘1961 Act’. Clause (i) of Section 15B(1) contains a deeming provision for admission of every eligible person as a member of Cooperative Society. On a plain reading of this provision, it becomes clear that the only thing which is necessary to be seen for admission as member of a Cooperative Society covered by Section 15B is his/its eligibility and as soon as an application is submitted by a person who is eligible for admission as a member, his/its admission is automatic. Object behind the enactment of 8 Civil Writ Petition No.4239 of 2009 Section 15B appears to be to encourage all eligible persons to become members of a Cooperative Society of the type mentioned in Section 15B(2) so that the benefit of loans etc. can be availed by much more larger segment of the rural population. Keeping in view this objective, we do not find any reason or justification to give a restricted meaning to the provision contained in Section 15B(1)(i). Rather we would say that the Court is duty bound to give full effect to the wider spectrum of the aforesaid provision. We, therefore”, do not find any merit in the contentions of Shri Bedi that enrolment of respondent Nos.9 to 30 is vitiated because the Supervisory Officer did not have authority to approve the admission of respondent Nos. 9 to 30 as members of the respondent-bank or that there is a violation of Rule 45 of ‘1963 Rules’ and the instructions issued by the Registrar, Cooperative Societies vide circular dated 13.5.1993. In our opinion, the non-obstante clause contained in Section 15B (1) is a complete answer to all the objections raised by the petitioners to the membership of respondent Nos.9 to 30.” After perusing the judgments cited by counsel for the petitioners and respondents, this Court is of the opinion that in Om Parkash Mann’s case and Amrik Singh’s case (supra), the Division Benches had not considered Section 15B of the Act, which was added by way of an amendment. The reasoning propounded by the Division Bench in Dhurkot Ransinh Cooperative Agricultural Service Society Limited’s case (supra) considered the object of Section 15B of the Act and also the fact that the cooperative movement requires participation of much more larger segment of the rural population and maximum persons are required to be encouraged to become members of the Cooperative Societies so that the Cooperative Societies do not remain stronghold of chosen few. Since the object of the Society is to advance loans for the purposes of raising crops and agricultural operations and all those, who 9 Civil Writ Petition No.4239 of 2009 take benefit of the loans can become members of the Society, therefore, the answer can be found in the reasoning propounded in Dhurkot Ransinh Cooperative Agricultural Service Society Limited’s case (supra) that there is no justification to give restricted meaning to the provisions contained under Section 15B(1)(i) of the Act. Thus, the present writ petition is hereby disposed of with a direction to the Assistant Registrar, Cooperative Societies, Malerkotla to comply with the directions issued by the Deputy Registrar, Cooperative Societies, Sangrur vide communication (Annexure P-6) and to conduct the election in accordance with the provisions of law, after constituting the zones, within a period of one month from the date of receipt of a certified copy of this order. A fresh voters list be prepared, which shall include the names of all those who have become members of the Society, on the date of issuance of voters list and constitution of the zones. [KANWALJIT SINGH AHLUWALIA] JUDGE October 14, 2010 rps 10