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Ram Kishan and ors. Vs. Secretary to Govt. State of Haryana, Co-operative Dept., Chandigarh and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 2076 of 1968
Judge
Reported inAIR1969P& H104
ActsPunjab Co-operative Societies Act, 1961 - Sections 27; Constitution of India - Articles 226 and 227; Code of Civil Procedure (CPC), 1908 - Sections 11 - Order 23, Rule 1
AppellantRam Kishan and ors.
RespondentSecretary to Govt. State of Haryana, Co-operative Dept., Chandigarh and ors.
Appellant Advocate Kuldip Singh, Adv.
Respondent Advocate C.D. Dewan, Dy. Advocate General,; Mohinder Jit Singh Sethi and;
Cases ReferredChand Sharma v. Chandra Shanker
Excerpt:
.....the board, proceedings were taken in hand for retiring the first lot of one-third members of the board of directors who were due to retire on january 7, 1967. as a result of the lots drawn for that purpose, one-third of the directors retired on march 18, 1968. these were the directors who would in the normal course have retired within a short time after january, 7, 1967. 3. on may 20, 1968, the registrar co-operative societies, haryana, chandigarh (hereinafter called th registrar) sent a communication (annexure 'a') to the general manager of the society informing the society that the government and in consultation with their law department intimated to the registrar that the second installment of the annual retirement of ne-third members of the board of directors of the society had..........'m,ade payable yearly' were considered to mean the same as if the words had been 'payable every year' yearly means once a year. in corpus juris secundum,. volume 101, at page 646, 'yearly' is shown to convey 'accuring or coming every year; annual.' according to the construction sought to be put by the petitioners 'yearly' may in certain circumstances mean 'after more thatn one year,' and not during every year. there appears tobe no warrant for such an interpretationof the bylaw. we, therfore, hold that according to bylaw 9(b) (vii) of th bylaws of the society, one-third of the elected directors of its board of management must retire at the end of the twoyears from th date of th constitution jof th leected board and that the remaining one-third would automatically cease to be directors.....
Judgment:
ORDER

1. In this petition under Articles 226 and 227 of the Constitution we are called upon to construe bylaw 9 (B) (vii) of the Bylaws of the Panipat Co-operative Sugar Mills Ltd., Panipat, district Karnal (hereinafter called the Society) so as to decide whether the period commencing from the date of supersession of the Board of Directors of the Society by the Government and terminating with the order of this Court setting aside the said supersession is or is not liable to be excluded from the period of one-year at the end of which one-third of the Directors are liable to retire in rotation. The facts leading to the filing of this writ petition are these.

2. The last Board of Directors of the Society was elected on January 8, 1966. There were ten elected Directors and three were nominated by the Government . One-third of the elected Directors were dur to retire after one year of the constitution of the Board of Directors , i.e. on January 7, 1967. The Directors who were to retire had to be selected by drawing lots in a meeting could be held , the Board was superseded under Section 27 of the Punjab Co-operative Societies Act (25 of 1961) (herein after referred to as the Act) by order of the State Government on and with effect from January 11, 1967. Civil Writ petition No. 89 of 1967, filed by Dharam Singh Rathi, Acting Chairman of the Board of Directors of the Society (respondent No. 4 in the present petition) was allowed by; the order of tek chand , J., dated August 29, 1967, as the State Government did not oppose the petition . The learned Judge issued a writ certiorari setting aside the order f the Registrar, Co-operative Societies superseding the Board of Directors and also issued a writ in the nature f mandamus restring te Board of Directors and also issued a writ in the nature fo mandamus restoring the Board of Directors of the Society which had been removed by the order impugned in that writ petition. On the restoration of the Board, proceedings were taken in hand for retiring the first lot of One-third members of the Board of Directors who were due to retire on January 7, 1967. As a result of the lots drawn for that purpose, one-third of the Directors retired on March 18, 1968. These were the Directors who would in the normal course have retired within a short time after January, 7, 1967.

3. On may 20, 1968, the Registrar co-operative Societies, Haryana, Chandigarh (hereinafter called th Registrar) sent a communication (Annexure 'A') to the General Manager of the Society informing the Society that the Government and in consultation with their law Department intimated to the Registrar that the second installment of the annual retirement of ne-third members of the Board of Directors of the Society had become due since January, 8, 1968.. Respondent No,. 4 the Vice-Chairman of th Society sent letter , dated nil (copy Annexure 'B') to the Secretary to government of Haryana in the Co-operative Department in connection with a copy of the Registrar's letter, dated may 20, 1968, which had been endorsed to the Government saying that the second term had no yet expired as the Board had functioned only for about one year due to its supersession by the Government for a period of about 7 1/2 months (from January 11, 19678 to August 2d9,1967), and that one -third of the members of the Board having already retired , the question of retiring another one-third did not arise at that stage.

The Vice-Chairman , therefore, asked the Government to examine all these matters before deciding the issue as the Vice-Chairman had consulted the Society's Legal Adviser and he was of eh view that the period during which the Board had remained under supersession could not be counted in the term of the elected Board of Directors as there was no elected Board of during that time. Ultimately, by memorandum, dated June 18, 1968 (Annexure 'c' ) the Registrar informed the General Manager of the Society to convene a meeting of the Board of Directors of the Society at 11 A. M. on July 4, 1968, in the premises of the mills of the society for drawing lots to retire the second group of the one-third elected members of the Board. It was desired that a copy of the notice of the meeting should be sent to the registrar 's office. Permission to convene the meeting at a shorter notice in terms of Rule 80 (1) (I) of the Punjab Co-operative Societies Rules , 1963 , was also accorded in the same communication . In pursuance of the Direction of the Registrar, th General Manager, (respondent No. 3 ) issued notice, dated June 19/20. 1968, (Annexure 'D') to all the members of the Board to draw lots of retirement of the second group of one-third elected members f the Board. It was to quash this above said direction of the Registrar (Annexure 'C') and the General Manager's notice of the meeting (Annexure 'D') that the present writ petition was filed b7y ram Kishan . Chandgi Ram and Dr. Parma Nand, three Directors of the Society, on July 2, 1968, during the summer vacation of this Court . On the application for interim stay of operation of the order and stay of the holding of the meeting. The vacation Bench (Gopal Singh and Tuli JJ.) directed on July 3, 1968 that the meeting held and lots and drawn on the 4th of July , 1968, but effect might not be given to the result of the drawing of the lots till the writ petition came up for hearing before the Motion Bench. When the petition came up for motion hearing on August 1, 1968, all the respondents were represented before us by Counsel.

All the parties were anxious to have the issues involved in the case settled at the earliest possible opportunity . We, therefore, issued notice to the main case from August 5, 19689, and in view of the novelty of the point sought to be argued before us and the same being res integra, we admitted th petition to a Division Bench. After hearing the Counsel for the Parties at length in connection with the stay matter we vacated the order which had been passed by the vacation Bench on July 3, 1968, but directed that re -election in place of Directors who had retired as a result of the drawing of lots on July 4 , 1968, may not he held till the date fixed for hearing of the writ petition,. Two separate written statements were filed by respondents No. 2, the Registrar and by the General Manager of the Mills respectively.

4. Though the large number of points had been taken up in the writ petition, only one matter was argued before us and Mr Kuldip Singh, Bar-at - Law, the learned Counsel for the petitioners expressly stated that he was not pressing any other point. The solitary contention which was pressed by the learned Counsel is contained in the following words in paragraph 14 (ii) of the writ petition:----

'That bylaw 9 (B) (vii) could only be interpreted to mean that the second lot for retiring the members could only be drawn when the Board has completed a life of two years in the office. Theperiod during which the Board of Directors had been superseded cannot be counted towards the life of the Board and the Government interpretation of the rule in this respect is not correct and is bad in law and the same is liable to be set aside'

The same point has been repeated in a somewhat different language in ground No. (iii) which reads:--

'That when the Board of Directors is superseded all the Directors ceased to be so from that very time. They are ousted from the office and they have no control whatsoever in the working of the Society. Under the circumstances counting of that period when the Board remained out of office for the purpose of bylaw 9 (B) (vii) is arbitrary and illegal,.'

5. In order to appreciate the very brief but equally lucid arguments of Mr. Kuldip Singh on the point in issue , it is necessary to set out at this stage., the relevant extracts from bylaw 9 of the bylaws of the society . Bylaw 9 is the first bylaw in the chapter dealing with the 'Board of Directors' bylaw 9 (A) states that the Board of Directors shall consist of 15 Directors including seven representatives of individuals m, three representatives of co-operative institutions, and five Government nominees. Clause (v) of bylaw 9 (A) then reads:------

'notwithstanding the provisions of bylaw No. 9 (I) , (ii) and (iii) the first Board of Directors shall be nominated by the Government. The board shall hold office for a maximum period of three years. In nominating the first Board of Directors Government may appoint as many directors as it deems proper rom time to time provided that the total number of directors holding office at onetime does not exceed 15, and the maximum period for which the nominated Board of Directors hold office does not exceed three years from the date of first nomination Subject to these conditions, Government shall have the power to make such changes in the nominated Board of Directors as it may consider necessary from time to time. The nominated Board of Directors, shall elect a Chairman and if necessary a Vice-chairman and also a secretary . For the conduct of any business , the presence of atleast one-third of the direction shall be necessary.'

The abovequoted clause governs the constitution of the first Board of Directors' who have to be nominated by the Government. The Board of Directors with which we are concerned was admittedlly not th first Board of the Society. It had been constituted by the election of seven representatives of indivuduals and three representatives o co-operative institutions and nmination of th remaining Directors by the Government. The clause has, however, been qoted as reference has been made thereto during arguments.

6. Bylaw 9 (B) provides inter alia that 'On the expiry of the period of nomination by the Government, the Bard of Directors with the exception of Government representatives shall be elected'. Then follows clause (vii) of bylaw 9 (B) around which the whole controversy in this case revolves----

'The Directors except the Government representatives shall reire in rotation, one-third of the Directors retiring yearly . For the first two years, the retiring Directors shall be selected by casting lots. Retiring Directors are eligible for election.'

Other clauses of bylaw 9 and the other bylaws in the chapter relating to the Board of Directors are neither relevantg for deciding this case, nor has any reference been made thereto at the hearing of this petition.

7. It is the common case of the parties that the maximum life of the Board of Directors provided by the bylaws is three years , and that no minimum period during which the Directors must hold during which the Directors musthold office has been expressly provided by any bylaw. No argument has been addressed to us regarding any possible difference which might have been made in the date on whichthe second group of one-third Directors had to retire by theactual retirement f the first group of one-third Directors on March 18, 1968, insstead of in January , 1967. All that has been vehemently argued is that the word Yearly' in clause (vii) of bylaw 9(B) refers to the end of a period of twelve mnths during which the Directors have been functioning. On the other hand, the contention of respondents (Other than respondent No. 4) is that 'Yearly' refers to th end of each year during the first two years commencing from thdate on which the Board of Directors is constituted by election . Mr. Kuldip Singh submits that the object of the relevant by;law is that the Directors of the Board should actually function for three years and that at the interval of every year of actual working of the Directors , one-third should retire.

On the other hand, the contentionof the contesting respondents is that the actual working of the Directosrs is not relevant for the purpose of enforecement of the provisions contained in the relevant bylaw, and that a mere mathematical calculationof the period referred to thereinhas to be made sarting from the point of time at which thelected Board is constituted. No authority in support of either of the two propositions was cited at the Bar by the learned Counsel azppearingbefore us. It was claimed on behalf of the petitioners that instead of retiring on the 7th of January 1968, the seacond group of the One-third numbers of Directors of the Board are due toretire in or about the end of August, 1968, i.e., by adding to the period ending January 7,1968, the period during whichthe Board remained suspended under a purported order of th State Government. Mr. Mohinderjit Singh Sethi, Adviocate for respondent No. 3 who addressed the main agrument on behalf of th contesting respondents with great ability stressed the point that the period of supersession could not in this case be taken into account as the order of supersession which was later quashed by the High Court as being illegal, should be treated as a nullity and that as a result of this situation,. The Board should be deemed to have continued to function during the period during which it did not actually function.

8. After hearing learned Counsel for the parties at length , we are of the considered opinion that the bylaw as framed does to at all refer to the Board or its members actually functioning as Directors , but has relation only to the point of time starting with the date of the constitution of the Board, irrespective of whether the Board as such or any of its members was able to function during the first period of one year after its constitution at any time during that one year or not. The first batch of the one-third of its elected members must retire of the date in the next year on which the Board was constituted in the previous year. And the second group of the one-third group of the elected members who would automatically cease to be Directors at the end of three years from the date on which they were originally elected. Any other construction of the bylaw in question would, in our opinion, create anomalies and result in absurdities, which must according to settled principles of interpretation of statues be avoided . The argument of Mr. Kuldip Singh to the effect that the Directors who had no opportunity to function fdor two years for no fault of theirs should not be compelled to retire before they have had opportunity to so act by; drawing lots for the retirement of the second group of Directors who have to retire by rotation, does not appear to be sound.

If all the elected Directors were to meet an accident while travelling by some vehicle on duty as Directors of the Society and were tobe hospitalised for one year, it cannot be said that there would be no retirement oat theend of the first year . If such an accidentwere to happen immediately afater the expiry of the two years, the last remaining one-third of the group of the originally constituted Board cannot claim that the maximum life of the Bnoard in so farf as itaffects them, stands edtended to four years instead of three. Similarly, ;it cannot, in our opinion, be argued that if by; anychance, the Direcdtors who have to retgire under the bylaw in question have been in illegal detention or impriosonment uring somemonths and theirdetention or impriosnment has subsequentlybeen declared by a competent Court to have been illegal and void , they can possibly claim toremain in office for an additional period to that extent beyoidn the period f the first y;ar or second year or third year of th Board as the cas may be. The life of a state Legixstatrue is fixed at five years in the Constitution . The members of the Legislative Assembly the State which might have been suspended fr say one year out of those five years on account of the imposition of the president's rule cannot, in our opinion, claim at the end of five years that general elections in that State would not beheld for another year, and they must continue in office as they have not yet completed five years of actual working as M. L.. A.s.

Still this would be the result of accepting the contention of Mr. Kuldip Singh, Neither there is provision in the Act not in the rules nor even in the bylaws for extending the life of the Board of management of a co-operative society in the State of Haryana. In the absence of such a provision the life of the Board as whole cannot be extended beyond three years, Still this would be the result if the Board were to be superseded, in the third year of its constitution and were to remain under supersession for say eight months , and then the order of supersession were to beset aside on a date when more than three years have elapsed since th Board was constituted. The effect of the construction of the bylaw in question canvassed by Mr.Kuldip Singh would be that the life of the Board or at least a part of it will not come to an end on the expiry of th maximum period of three years provided in the bylaws, Mr., Setghi further, contended that no hardship would be caused to the members who may have to retire by rotation according to the strict construction of bylaw 9 (B) (vii) without having actually worked fjor a full year or two years as the case maybe, because they can seek re-election. Our decision should not ,in may opinion, be affected bny an argument of hardship or want of hardship alone.

9. When bylaw 9(B) (vii) requires that one-third of the Directors should retire yearly, it means that one-third shouyld retire every year, Every year in the ocntext means at the end of every year. This leads us of necessity to the questionas to the point of time frojm whichthe year starts, The only posisnle answer is neyear from thedate on which the Board came into existence for thw first one-third members and two years from the same date for the second, and three years from thesaid date for theremaining one-third elected members of t Boar, Year, of course, would mean the civil year as distinguished from the astronomicalyear. The constructgion sought to be put on the bylaw onbehalf of th peitioners wuld lead to unimaginable uncertainties and possible absurdities to some of which reference has already been made. 'Yearly' has been described in Stroud's Judicial Dictionary, Volume 4, at page 3357 as 'only a word of calculation. ' No construction like that canvassed by Mr. Kuldip Singh enters into a matter of pure calculation.

In Doe d. Shrewsbury v. Wilson, (1720) 5 B & Ald 360 (382) , referred to in illustration, No., 5, under the meaning of th word 'yearly' at page 3358 of Stroud's Judicial Dsictionary, Volume 4, the words 'm,ade payable yearly' were considered to mean the same as if the words had been 'payable every year' Yearly means once a year. In corpus Juris Secundum,. Volume 101, at page 646, 'Yearly' is shown to convey 'accuring or coming every year; annual.' According to the construction sought to be put by the petitioners 'yearly' may in certain circumstances mean 'after more thatn one year,' and not during every year. There appears tobe no warrant for such an interpretationof the bylaw. We, therfore, hold that according to bylaw 9(B) (vii) of th bylaws of the Society, one-third of the elected Directors of its Board of management must retire at the end of the twoyears from th date of th constitution jof th leected Board and that the remaining one-third would automatically cease to be Directors on the expiry of three years from the aforesaid date. Wee further hold that the time during which the Board of Directors might have remained under suspension or the Directors or any of them might not have been able to function for whatever reason it might have so happened, cannot be excluded from or added to the period during which the Director or Directors in question can remain in office under the aforesaid by law. The solitary contention canvassed in this case on behalf of the petitions, therefore, fails.

10. In fairness to Mr. Mohinderjit Singh Sethi, it may be noticed that he raised some preliminary objections to the maintainability of this writ petition to which we are referring at the tail end of the judgment because we do not think it proper to leave the main question undecided after hearing the Counsel for the parties on merits at lengths. We do not fund much force in the first objection of Mr. Sethi to the effect that in the circumstances of this cas, the three petitioners should not be permitted to maintain a mnoint writ petition. This is so because all the three petitioners were similarly situated on he date the writ petition was filed and apprehended common danger and wanted to raise identical points in support of their joint calm.

There is however, force n the other two objections pressed by Mr. Sethi In order to decide those points an additional fact has to be taken into account. As a result of the lots drawn in the meeting of the Board of Directors held on July 4, 1968, Ram Kishan petitioner No. 1, Dharam Singh Rathi respondent No. 4, and one Ram Chander who is not a party in the case before us, were selected by drawing lots for being retired in the second batch. The objection of Mr. Sethi is that the lots for retirement not having fallen on petitioners Nos. 2 and 3, their application has become infrustuors, and they having no more interest in maintaining this petition where under the only relief claimed was to quash order Annexure 'C' and notice Annexure 'D' , it would be embarking on the decision of a purely academic question, if their writ petition was now allowed to be heard on merits.

This part jof the second objection of Mr. Sethi may not be really fatal to the petition as it would have been open to petitioners Nos. 2 and 3 to amend the prayer clause in the writ petition so as to claim that at the end of three years from the date of the constitution of the Bard, they would not be liable to retire as they would be entitled to continue in office for an additional period of 7 1/2 months to make up time during which they could not function on account of the illegal order of supersession of the Board of Directors by the Government. It is the next part of the objection to which there can in our opinion, be no reply, It was pointed out that Ram Kishan petitioner No. 1 filed a suit for permanent injunction in the Court of the Subordinate Judge, Karnal on July 2, 1968, against the Society and its Vice-Chairman, claiming that the defendants in the suit be restrained from retiring the Directors of th Society ion pursuance of the direction of the Registrar on inter -alia the ground: 'that the Board remained superseded and did not function from 11-1-1967 to 29-8-1967, and legally this period cannot be computed for the purpose jfo determining the period for retiring the Directors'. (Clause (d) of paragraph 7 of the plaint of which certified copy has been filed by the respondents on the record of this case).

It is said that an application for temporary injunction during the pendency of the suit was made by Ram Kishan petitioner No. 1 under Order 39 Rules 1 and 2 and Section 151 of the Code of Civil Procedure on July 2, 1968, along with the plaint of the suit. A certified copy of the application has also been produced. By its detailed order, dated July 4, 1968, the Subordinate Judge 1st Class, Karnal, dismissed the application fo temporary injunction after considering the arguments of the plaintiff in the suit including the point on which we have been addressed in this writ petition. As soon as temporary injunction was refused . Ra, Kishan Plaintiff made a statement before the Subordinate Judge passed the following final order in the suit on July 4, 1968:__

'In view of the above statement f the plaintiff the suit is dismissed as having been withdrawn.'

It is admitted that no leave to file a fresh suit on the same cause of action was either prayed for by Ram Kishan or granted by the Court. These facts have given rise to two objections. Firstly, it is contended that the petitioners are guilty of concealment of a martial fact inasmuch as they kept back from this Court the factum of the filing of the civil suit at the time of filing this writ petition on July 2, 1968. Mr. Kuldip Singh stated that the petitioners Nos. 2 and 3 were not award of this , and Ram, Kishan inadvertently did not mention anything about the suit though he could not possibly have written anything about what happened in the suit on July 4, 1968, after the filing of th writ petition on the second of July, Be that as itmay, it is contended that on the authority of the pronouncements of the supreme Court in Daryao v. State of U. P., AIR 1961 SC 1457, and in phool Chand Sharma v. Chandra Shanker, AIR 1964 SC 782, the dismissal of the suit of petitioner No. 1 should be held to disentitle the prtitioner to claim the same relief of the same grounds in a petition under Article 226 of the Constitution on general principles of res judicata, and on the principles of Order 23 Rule 1 of the Code f Civil Procedure.

I think there is great force in this objection of Mr. Sethi Ram Kishan petitioner has in any event, disentitled himself in the circumstances of this case to claim any relief from this Court under Articles 226 and 227 of the Constitution on the same grounds on which he instituted the suit which he voluntarily got dismissed. In the view we have taken of the solitary contention of the petitioners, on the merits of the case, it is not necessary to deal further with these objections of Mr. Sethi.

11. For the foregoing reasons, this petition fails and is accordingly dismissed. In view, however, of the fact that the main question raised in the case was some what novel and is not covered by the pronouncement of any High Court or of their Lordships of the Supreme Court, we direct that the parties shall bear the costs of this case as incurred by them.

12. Petition dismissed.


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