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Dhudaram Vs. the State and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1895 of 1982
Judge
Reported inAIR1983Raj29; 1982()WLN201
ActsRajasthan Co-operative Societies Act, 1965 - Sections 36, 36(1), 36(1A) and 36(4); Constitution of India - Articles 14 and 226
AppellantDhudaram
RespondentThe State and ors.
Appellant Advocate M.M. Singhvi and; M.S. Singhvi, Advs.
Respondent Advocate R.P. Dave, Dy. Govt. Adv.,; N.S. Acharya and; Purshottam
DispositionPetition allowed
Cases ReferredSocieties v. K. Kunjabmu
Excerpt:
rajasthan co-operative societies act, 1965 - section 36(1) (a)--nomination of managing committee by state government beyond remainder term of elected committee--held, order of nomination is beyond powers of state government;as the order dated june 8, 1981 is couched, it was beyond the powers of the state government under its orders dated november 13 and december 4, 1981 to nominate a managing committee for a co-operative society beyond the remainder term of the elected committee. in the instant case, as already stated, the committee was nominated on november 20, 1981 and further members were added to it on december 4, 1981 and as such, the nomination of the committee is not in accordance with law and is beyond the powers of the state government.;(b) rajasthan co-operative societies act,..........old practice of holding elections of the democratic institutions within the scheduled time, the state government took a decision and directed that the elections be held in all the co-operative societies all over rajasthan on or before dec. 30, 1981. hence, when the administrator was functioning, one anil kumar garg was appointed as election officer to conduct the elections of the representatives from amongst individual members 'a' class of the consumers for the general body, in rashtradoot dated nov. 3, 1981, the said election officer published the programme of the elections under which the final (provisional) electoral roll was to be published on 23-11-81. objections to the electoral roll were to be obtained on nov. 24, 1981. the objections were to be heard on december 9, 1981 and a.....
Judgment:
ORDER

M.B. Sharma, J.

1. In this writ petition, animportant question is involved about the powers of the State Government to nominate a committee in a co-operative society.

2. The petitioner, agriculturist by profession, is a member of the Bikaner Sahakari Upbhokta Wholesale Bhandar Limited, Bikaner (for short, 'the Bhandar' hereinafter) since the year 1963. The Bhandar which is a consumers' cooperative society, was registered as a co-operative society on January 23, 1963 under the provisions of the Rajasthan Co-operative Societies Act, 1965 (hereinafter called 'the Act') by registration No. 373-F. The petitioner has been a Chairman of the Bhandar twice and lastly, he was elected as such on August 20, 1976. As per bye-law No. 11 (6) (2) of the Bye-laws of the Bhandar, the period of the Managing Committee (Sanchalak Mandal) is to be three years. The election had taken place on 20-8-1976 and the three years' period was to expire on August 20. 1979 but before the expiry of the aforesaid therefore term, under the provisions of Section 36 (1) (a) of the Act, the comittee was removed and in its place, an Administrator was appointed.

3. In order to revive the old practice of holding elections of the democratic institutions within the scheduled time, the State Government took a decision and directed that the elections be held in all the co-operative societies all over Rajasthan on or before Dec. 30, 1981. Hence, when the Administrator was functioning, one Anil Kumar Garg was appointed as Election Officer to conduct the elections of the representatives from amongst individual members 'A' class of the consumers for the General Body, In Rashtradoot dated Nov. 3, 1981, the said Election Officer published the programme of the elections under which the final (provisional) electoral roll was to be published on 23-11-81. Objections to the electoral roll were to be obtained on Nov. 24, 1981. The objections were to be heard on December 9, 1981 and a decision was to be given. Thereafter, the final electoral rolls were to be affixed on the notice board. The nomination papers were to be received on Dec, 11, 1981 in between 10-00 A.M. to 2-00 P.M. The same day, they were to be scrutinized and a list of all the candidates was to be published. The withdrawal was to take place by Dec. 14, 1981 in between 2 to 5 p.m. and if necessary symbols were to be allotted to the candidates. If necessary, elections were to be held on Dec. 20, 1981 from 8-00 a.m. to 4-00 p.m. in accordance with the earlier information dated July 9, 1981 The aforesaid programme for elections was modified and the date for acceptance of membership forms was extended from 15-11-81 to 1-9-11-81.

4. It appears that after the publication of the programme for the elections in Rashtradoot dated 3-11-81 and before it could be implemented, the State Government, under its order dated Nov. 13. 1981 (Ex. 2 pp. 31-32) appointed one Shri Vijaysingh Advocate as Chairman andten others as members of the Managing Committee of the Bhandar in place of the Administrator. The petitioner challenged the nomination in this Court, by the present writ petition on 18-11-1931 impleading all the eleven persons as respondents to the petition. To complete the narration of the facts, it may also be mentioned here that thirteen more persons including the petitioner were nominated as members of the Managing Committee under the order of the Government dated Dec. 4, 1981 one of them namely Purshottam, on his application has been impleaded as a respondent.

5. The nomination has been challenged by the petitioner in this petition on two grounds: firstly, that it is discriminatory inasmuch as the other Bhindars, similarly placed, in which there were also administrators functioning, a committee has not been nominated and elections have been allowed to take place and now those Bhandars and other co-operative societies were having elected representatives whereas in the case of the Bhandar, even after the election programme was announced, the Managing Committee was nominated as aforesaid. The members nominated were not qualified and eligible to be members as they were not even members of the Bhandar; and secondly, that the nomination of the committee is beyond the powers of the State Government and as such, is beyond its jurisdiction.

6. Show cause notice was issued to the respondents and they have shown cause. According to the reply of the respondents, the election programme had been postponed in consultation with the Registrar due to the Panchayat elections. The revised programme for holding the election for members of the representative body was also published in which the polling was to take place on Jan. 20, 1982. After the election of the representatives of the members, the election of the Chairman and other office-bearers of the Managing Committee would have taken place in accordance with the bye-laws. It will, therefore, be clear that when the Administrator was functioning, a Managing Committee was nominated in his place on Nov. 13, 1981.

7. The State Government, in exercise of thp powers conferred on it under S. 139 of the Act, read with Rule 110 of the Rajasthan Co-operative SocietiesRules, 1966 (for short, 'the Rules' hereafter) issued an order dated June 8, 1981 (Annexure 2A) that the general provisions of the Act are put in abeyance in such of the societies where Administrators are functioning and the percentage of official members was more than the members from the public. After the aforesaid order came to be passed, the aforesaid order dated Nov. 13, 1981 (Ex. 2) nominating Shri Vijaysingh Advocate as Chairman and other ten members was passed.

8. The order of the State Government dated June 8, 1981 reads as follows,--

^^tks fd jktLFkku dks dqN 'kh'kZlgdkjh lfefr;ksa] laLFkkvksa] esaa bl le; ljdkjh vf/kdkjh %v/;{k in ij ,oe~ dqNesa vuqikr ls vf/kd ljdkjh lnL; euksuhr gS A

vkSj tks fd jkT; ljdkj euksuhr ljdkjh v/;{kksds LFkku ij xSj ljdkjh v/;{k cukuk rFkk euksuhr ljdkjh lnL;ksa dh la[;k de djukmi;qDr le>rh gS A

vr% jktLFkku lgdkjh laLFkk vf/kfu;e1965 dh /kkjk 139 dks jktLFkku lgdkjh laLFkk fu;e 1966 ds fu;e 110 ds lkFk iSocieties v. K. Kunjabmu (AIR 1980 SC 350), while dealing with Section 60 of the Madras Co-operative Societies Act, 1932, which also vested powers in the State Government by general or special order, held it to be intra vires. It was observed by their Lordships (at p. 354),--

'.........In fact, the too rigorous applications of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by Section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modification. The power given to the Government under Section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear'.

I am, therefore, of the opinion that as the order dated June 8, 1981 is couched,it was beyond the powers of the State Government, under its orders dated November 13 and December 4, 1981 to nominated a Managing Committee for a co-operative society beyond the remainder term of the elected committee. In the instant case, as already stated, the committee was nominated on Nov. 20, 1981 and further members were added to it on Dec, 4, 1981 and as such the nomination of the committee is not in accordance with law and is beyond the powers of the State Government.

12. The next contention of Mr. Singhvi is that under Section 139 vide order dated June 8, 1981, the provisions of the Act were exempted for such of the societies where administrators appointed under Clause (a) of Sub-section (1) of Section 36 were functioning and where the percentage of the official members was more than the members representing the public. He submits that such of the societies were one class. In para 7 (b) (internal p. 10 of the writ petition) it has been averred that after announcing the elections the State Government has not appointed any such committee in place of Administrator in any similar co-operative society in the whole of Rajasthan. In ground l-C (p. 11 (b) amended petition) it has been further mentioned that order Ex. 2 is also vitiated as the same is discriminatory and violative of Article 14 of the Constitution, inasmuch as, no such Committee has been appointed in place of the Administrator in any other co-operative society in Rajasthan after the announcement of the election of the co-operative societies in Rajasthan. Similarly, in ground ID (p. 11-C), it has further been mentioned that the order Ex. 2 issued in respect of the Bhandar in question only is against the spirit of the order Ex. 2A itself, because if non-official persons as Chairman were to be nominated for the administrator or official members, then the same should have been done in respect of all the co-operative societies in Rajasthan, similarly placed, By isolating the Bhandar in question, as a single instance, is mala fide and the State Government has practised high degree of discrimination. These averments have not been challenged in the reply either by the State Government or by the other respondents and all that has been stated is that the power isvested in the State Government. The power which I have held above, in the facts and circumstances of the case, did not vest in it. The State Government has not stated as to why. out of such class of co-operative societies or Bhan-dar where Administrators were functioning under Clause (a) of Sub-section (1) of Section 36 of the Ad, only the Bhandar hay been picked up and in all others, elections were allowed to take place. To my mind, discrimination is writ large in this case. It appears to be a clear case of hoslile discrimination amongst Bhan-dars similarly placed. The spirit of the Act is that the co-operative societies should have elected representatives and only in such cases, where their functioning has become difficult because of financial stringencies, or the society makes default' or is negligent in the performance of the duties imposed on it by the Act or Rules or bylaws or commits any act which is prejudicial to the society or its members or is not discharging its functions properly, a committee can be removed and an administrator can be appointed or as already stated earlier, in its place, a committee may be nominated for the remainder period of the elected committee or for a period not exceeding one year thereafter.

13. It is given out by Mr. Dave, learned Deputy Government Advocate that the Government is serious to hold elections. It is good that such appears to be the intention of the Government, He submits that because the elections are going to be held, the nomination of the committee should not be quashed. Mr. Acharya submits that those who were further nominated to the committee under the order of the State Government on Dec. 4. 1981, all of them hava not been impleaded. None has come forward except Purshottam. There is no material on record that others have assumed charge as members. I am, therefore, of the opinion that with the view which I have taken, it is not necessary that all those who were also members on Dec. 4, 1981 should be made parties also, as it is not going to effect the merits of the case. Moreover, if it were so, the Government may go on adding or removing persons as members during the pendency of the writ petition and If the argument of Mr. Acharya is accepted, there would be no end to it.

14. The question now is as to what relief should be granted in this petition? Whether the nominated committee should be allowed to continue and a direction should be given to the respondents Nos. 1' to 6 to hold the elections within a specified period or the orders nominating the committee should be set aside and administrator should be appointed and elections should be held? I feel that a balanced view is required. I does not appear in this case and there is no material on record produced on behalf of the State Govt. that to achieve the aims and objects of the Bhandar as contained in the bye-laws, the elections were not held and a committee had to be nominated. Thus, to me, it appears that the action of the State Government in nominating the committee for the Bhandar and not treating the other societies similarly placed in the similar manner, is clearly discriminatory.

15. It will, therefore, allow this writ petition, quash the order Anx. 2 dated 13-11-81 as well as 4-12-81 nominating the Chairman and members of the Managing Committee but in order to facilitate the functioning of the Bhandar till other arrangements by appointment of an administrator are made. I hereby order that the committee nominated shall cease to function after a period of one month and by then, it is expected that an Administrator is appointed, then as far as possible, elections should be held within a period of three months and for that purpose, an election officer be appointed without any delay, if one is not already there. The costs of this petition are, however made easy.


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