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Ram Lal and ors. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 1108 of 2004
Judge
Reported inRLW2005(2)Raj2366; 2004(5)WLC181
ActsRajasthan Co-operative Societies (Amendment) Ordinance, 2004 - Sections 3; Rajasthan Co-operative Societies Act, 2001 - Sections 13, 28 (5), 24, 27, 27(1), 28(5), 29, 30, 30(1), 30(2B) and 32 to 37; Rajasthan Co-operative Ruels - Rules 27, 38(2), 38(4) and 110; Constitution of India - Articles 12 to 35A, 200, 213, 213(1), 246, 248, 249, 250, 251, 252, 253, 254, 254(2), 286, 301, 302, 303 and 304; Rajasthan Cooperative Societies Act, 1965 - Sections 36(1B) and 139; Constitution of India (First Amendment) Act, 1951; Constitution of India (Fourth Amendment) Act, 1955; Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1972; Orissa Land Reform Act, 1960; Constitution of India (17th Amendment) Act, 1964; Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956; Bom
AppellantRam Lal and ors.
RespondentState of Rajasthan and ors.
Appellant Advocate P.P. Chaudhary and; Amit Dave, Advs.
Respondent Advocate B.P. Agarwal, Adv. General,; N.M. Lodha, Addl. Adv. General,;
DispositionPetition dismissed
Cases ReferredSultan Singh v. State of Rajasthan and Anr.
Excerpt:
- - neither there was any provision for holding election of new committee well in advance before expiry of the term of existing committee, nor under the act of 2001 it was envisaged, until ordinance no. 360. the aforesaid decision was rendered while considering like ordinance inserting like provision in section 36 of the rajasthan co-operative societies act, 1965, which was repealed by the act of 2001. 13. the learned advocate general and addl. for non-fulfilment of any condition of article 31a of the constitution, the amended provisions will not enjoy protection or immunity from being challenged on the anvil of being inconsistent with article 14 or article 19 of the constitution and on such challenge being made, its validity could be tested on the touch-stone of well settled principle.....rajesh balia, j.1. in these petitions the constitutional validity of section 3 of rajasthan co-operative societies (amendment) ordinance, 2004 has been challenged. as per section 3 of the ordinance, sub-section (2-b) has been inserted in existing section 30 of the co-operative societies act, 2001. the impugned provision provides for contingency where before expiry of the term of the elected managing committee of any society, a new committee is not constituted. in such event, it enables the govt. to direct the registrar of co-operative societies to appoint a government servant as administrator to manage the affairs of the society till a new committee is constituted provided that no member of the committee replaced by an administrator under this sub-section shall be deemed disqualified.....
Judgment:

Rajesh Balia, J.

1. In these petitions the constitutional validity of Section 3 of Rajasthan Co-operative Societies (Amendment) Ordinance, 2004 has been challenged. As per Section 3 of the Ordinance, sub-section (2-B) has been inserted in existing Section 30 of the Co-operative Societies Act, 2001. The impugned provision provides for contingency where before expiry of the term of the elected managing committee of any society, a new committee is not constituted. In such event, it enables the Govt. to direct the Registrar of Co-operative Societies to appoint a Government Servant as Administrator to manage the affairs of the society till a new committee is constituted provided that no member of the committee replaced by an administrator under this sub-section shall be deemed disqualified under Sub-section (5) of Section 28.

2. Under the parent Act before amendment also an Administrator could be appointed to take over the management of a society by removing the existing committee under Section 30 (1), but in that event the members of a committee removed under Section 30 become disqualified to be a member of a committee, as per Section 28 (5) of the Act. The Act also made provision for amalgamation of two or more co-operative societies under Section 13.

3. The Act of 2001 was reserved for consideration of the President and had received assent of the President. In view thereof, such of the provisions of Act of 2001, which provides for any of the matters enumerated in Sub-clauses (a) to (e) of Clause (1) of Article 31-A, including taking over management of property by the State were protected from being challenged on the ground of being inconsistent with Articles 14 and 19 of the Constitution of India, notwithstanding declaration under Article 13(2) of the Constitution.

4. In Daman Singh v. State of Punjab, AIR 1985 SC 973, the Co-operative Society has been held to be an entity falling within the purview of expression 'Corporation' under Article 31-A(1) (c), repelling the contention that protection afforded by Article 31-A(1) (c) of the Constitution was not available to Co-operative Societies since the expression 'corporation' did not comprehend Co- operative Societies within its' expanse.

5. In all these petitions, the elections of the Managing Committee of the Co-operative Society concerned were held much prior to enactment of Rajasthan Co-operative Societies Act, 2001 which was brought into effect from 14.11.2002. Under the repealed law (The Cooperative Societies Act, 1965), the period of elected members of the managing committee was not prescribed under the Act but was left to be provided for under bye laws. As per bye laws approved, the period of managing committee was prescribed three years but they were to hold office until new committee was constituted. According to the repealed law there was no hiatus between the existing elected managing committee and new committee to be elected and it would continue to hold office until successor committee is elected to take over. Neither there was any provision for holding election of new committee well in advance before expiry of the term of existing committee, nor under the Act of 2001 it was envisaged, until Ordinance No. 1 of 2004 was promulgated, for such election in advance.

6. Unlike the repealed Act, under the new statute the term of elected members of a committee is provided five years under Section 32 itself. No provisions are made, either under the Act or the Rules or bye laws, for continuance of the committee of elected members beyond the term of five years. Under the saving clause only such action taken under the repealed law were saved which are not inconsistent with the provisions of the Act of 2001.

7. Hence on commencement of New Act, life of the existing committee could not extend beyond five years of its existence. Since in respect of all the Co-operative Societies in question, period of five years had already expired since their constitution after the commencement of the Act, the term of existing committees had been extended but has not been extended after 2003. No election process had been initiated either under the provisions of the Act of 2001 so far by the general body or elected managing committee.

8. The Ordinance makes amendment, apart from the impugned provisions, also by substituting Chapter V of the Act of 2001 to provide for an elaborate procedure ensuring that elections of succeeding committee may be held prior to the expiry of the term of existing committee by mandating that the process for electing new committee be initiated at least six months prior to expiry of the term of existing committee. Simultaneously, the impugned Sub-section (2-B) in Section 30 was also inserted enabling the State Govt. to direct the Registrar for appointing Administrator, where the election for constituting new committee has not taken place, before the expiry of term of existing committee.

9. In the aforesaid circumstances, where the term of the elected committee has expired, without electing successor managing committee, in terms of such amendment, Administrator so appointed can continue until new committee is constituted.

10. The contention raised by the learned counsel for the petitioners in these petitions is that the impugned provision suffers from vice of being inconsistent with Article 31-A(1) (c) of the Constitution of India on two fold grounds;

11. First that the impugned provision provide for taking over the management of property of the co-operative society by the State within the meaning of sub Clause (b) of Clause (1) of Article 31A of the Constitution of India. Under first proviso to Article 31-A(1) (c) no such law can be made by the Legislature of the State, unless such law has been reserved for consideration of the President and has received his assent. Since the amending Ordinance of 2004 has not been promulgated under Instructions from President, the Ordinance is inoperative in view of first proviso to Article 31A read with Clause (a) of proviso to Article 213. Secondly it has been contended that whereas, under Article 31-A(1) (c) taking over of management of property of co- operative society is permissible only for a limited period, the impugned provision does not provide for limit for which management of the society can be taken over. Hence, sub-section (2B) inserted in Section 30 of the Act of 2001 by the Ordinance transgresses the said limitation of constitution also.

12. The learned counsel for the petitioners in support of his contentions placed reliance on the Bench decision of this Court in case of Dr. Hari Singh v. State of Rajasthan and Ors. and other connected matters 1991 (2) R.L.R. 360. The aforesaid decision was rendered while considering like ordinance inserting like provision in Section 36 of the Rajasthan Co-operative Societies Act, 1965, which was repealed by the Act of 2001.

13. The learned Advocate General and Addl. Advocate General appearing for the State urged that first proviso to Article 31A does not provide any restriction or limitation on competence of the State Legislature to legislate on the subject matter, in respect of which it otherwise has competence to legislate. The State Legislature is fully competent to legislate in the field of co-operative Societies and submitted that even if it provides for taking over of the management of property of the co-operative society temporarily in exercise of its legislative competence, that does not become invalid merely because it has not been reserved for consideration of the President and has not received the assent of the President. The effect of not reserving such law for consideration of the President or not receiving his assent would not affect the validity of the law on the ground of lack of 'legislative competence or non-fulfilling the preconditions for legislating on the subject. Hence, it was not incumbent upon the Governor to have sought sanction of President before promulgation of Ordinance. For non-fulfilment of any condition of Article 31A of the Constitution, the amended provisions will not enjoy protection or immunity from being challenged on the anvil of being inconsistent with Article 14 or Article 19 of the Constitution and on such challenge being made, its validity could be tested on the touch-stone of well settled principle governing the requirement of Article 14 and 19 of the Constitution. Like any other law, no presumption exists about such law being violative of Article 14 and 19 per se. But if challenge is made, it has to be established by the person who challenges the validity of law on such grounds and court is required to examine the challenge on merit. Law made in the field covered by Article 31A fulfilling the conditions laid therein will make it immune from challenge on these limited grounds. But it is still open to challenge on grounds other than violation of Article 14 and 19, e.g. that the law is beyond the legislative competence of the Slate Legislature or for that matter such law is repugnant to law made by Parliament on a subject falling in concurrent List, or it violates any other provisions of the Constitution.

14. The basic premise of the contention raised by the petitioners in these petitions is decision rendered by this Court in Dr. Hari Singh's Case. The first enquiry which need be addressed is whether the answer to question raised before us is authoritatively provided by this Court in Dr. Hari Singh's Case as a binding precedent

15. On a careful examination of Dr. Hari Singh's Case, we find that issues raised before us were neither raised nor even adverted to in said decision. In fact the conclusion was reached by the Bench on admissions and concessions made by the counsel appearing for the State; and on assumption that for making any law in respect of any of the matters enumerated in Sub-clauses (a) to (e) of Article 31-A(1) (c), assent of the President is pre- condition under first proviso to Article 31-A(1) (c), and without such assent any law falling within Article 31A(1) (a) to (e) cannot be enacted at all by State Legislature. Hence Ordinance impinging on such subject also needs instructions of President, which is apparent from the following statement made in the judgment by the Court.

16. The contention was raised in the following terms:

'Mr. Sharma appearing on behalf of the petitioners has argued that under Article 31A it is necessary under Clause (b) of Clause (1) to obtain the assent of his Excellency the President of India. He submits that Clause (b), provides that 'notwithstanding contained in Article 13, no law for providing for the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property shall be valid unless such law having been reserved for consideration of the President, has received his assent. Where such law is made by the Legislature of the State the assent of the President is necessary.'

17. The respondents response noticed by the Court:

'It is an admitted case of the parties that the ordinance has been issued without the assent of the President and it has not been referred for the consideration of the President in time. It is also an admitted position that earlier when the Act was enacted, it was submitted to His Excellency, the President for his assent and the President accorded assent and it was considered by the State Government that the assent of His Excellency, the President is necessary.'

18. The conclusion of the Court was recorded as under:-

'Even in subsequent amendments, the assent of His Excellency, the President was obtained. We are of the view that for ordinance to become an effective ordinance and a valid ordinance, it is necessary that the assent of the President should be obtained. Thus, there is a violation of the provisions of Article 213, as such, we hold that the ordinance No. 2 of 1990, issued on 31st August, 1990, is not a valid ordinance and it is invalid and ineffective only for the reason that the proviso to Article 213 relating to the assent of His Excellency, the President of India has not been followed and we declare that Section 36 (1) (b) is not a law or a valid amendment of the Act.'

19. It is apparent from the above that because of the admitted stand taken by the parties on the contention raised by the petitioner, the Court without examining the issue whether Article 31A requires as a legislative essential assent of the President for enacting any law by a State Legislature providing for acquisition or taking over the management of property for limited period and failure to do so renders the law as invalid as having been made without necessary required legislative process, or it merely takes away the applicability of Article 31A and immunity from challenge to validity of such being inconsistent with Article 14 and 19 of the Constitution is not extended, which renders it vulnerable to challenge as being violative of Article 14 and 19, as any other law which is made by the State Legislature within the field reserved for its legislative authority ordinarily is, has held the Sub-section (1B) of Section 36 of the Co-operative Societies Act, 1965 to be violative of Article 213. However, requirement of reserving for President's consideration and receiving his assent as necessary pre-condition for such legislative exercise has been assumed. In fact, though ground was raised that such enactment could not be validly enacted without reserving it for consideration of President and having received his assent as per Article 31A, no answer to it was given by the Court. The conclusion rested on assumption that since the original enactment had been reserved for consideration of the President and had received his assent, and also the subsequent amendment of the Act of 1965 had been passed by the same process, in between amendment in the Act of 1965 vide Ordinance would also need President's assent. However, no discussion or reasoning has preceded the said conclusion.

20. In other words, the judgment by itself did not pronounce upon the contention of petitioners whether law falling within Act. 31-A(1)(b) if made by a State Legislature, will be stillborn until it complied with first proviso to Article 31-A(1) (c), nor any consideration appears to have been given to reach conclusion whether before promulgating Ordinance containing a provision like impugned provision, sanction of the President was needed under any part of Article 213.

21. Moreover, on the premise that the necessity of President's assent has been founded is without it being brought to the notice of the court contrary decisions of Supreme Court rendered considering first proviso to Article 31A itself that where subsequent amendment has been reserved for assent of the President and receives his assent, extends the protection to earlier enactment which it seeks to amend, notwithstanding the earlier enactment has not been so reserved for consideration of the President and received his assent.

22. In Mahant Sankershan Ramanuja Das Goswami and Ors. v. State of Orissa and Anr., AIR 1967 SC 59, the Court said while considering the consideration of an amending enactment by President before assenting to it as per Article 31A.

'It is to be presumed that President gives his assent to amending Act in its relation to the Act if sought to amend.'

23. Extending the principle in Venkatrao Esajirao Limbekar and Ors. v. State of Bombay and Ors., AIR 1970 SC 126, Hidayatullah, J. speaking for the Constitution Bench said:-

'If the President has been accorded to the amending Acts, it would be difficult to hold that President had never assented to the Parent Act viz. Hyderabad Act No. XXI of 1950.'

24. It was a case in which Parent Hyderabad Act No. XXI of 1950 providing for acquisition of estate had not received assent of the President. However, the Maharashtra Act amending the Hyderabad Act has been reserved for consideration of the President and received his assent which was held to extend to existing Parent Act.

25. In Dr. Hari Singh's case also, after the impugned amending Act has been made amending the Parent Act the Rajasthan Co-operative Societies Act, 1965, without assent of the President but to the subsequent amending Act, the President has according his assent, it inures for the principal Act as it exist on that date in view of the decision in Limbekar's case (supra), as it is presumed that such assent is accorded after considering the existing provisions of the Principal enactment including amendments upto that date.

26. Hence the decision in Dr. Hari Singh's case cannot be taken to be an authority for the contentious issue about the effect of non-reserving a law falling within the purview of Article 31-A(1) (c) which is made by State Legislature for consideration of the President and receives his assent. In such circumstances, the decision in Hari Singh's case is of little assistance in providing answer to the question raised before us.

27. It has to be examined on the anvil of constitutional scheme of distribution of legislative authority and constraints, if any, which emanates from different provisions of the Constitution.

28. We have given our anxious consideration to rival contentions.

29. At the outset, we may notice some basic premise to be kept in view while considering question of Constitutionality of any enactment. There may be multiple grounds to challenge an enactment to be ultravires and inconsistent with some or other provisions of Constitution.

30. Part III of the Constitution containing Articles 12 to 35-A is dedicated to recognition of fundamental rights of polity of this nation. Supremacy of fundamental rights is ensured by ordaing in Article 13 that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of the above mandate to the extent of contravention is held to be void.

31. The same infirmity was attached to the existing laws at the commencement of the Constitution to the extent they were inconsistent with the provisions of Part III.

32. That being the reach of provisions contained in Part III, yet no-law made by any competent legislature is presumed to be inconsistent with any provision of Constitution unless it is so established and declared by any High Court or the Supreme Court, as the case may be. In other words, any law made by any Competent legislative act is not assumed to be in violation of any provisions of Part III of the Constitution, but any person making such claim has to seek the adjudication of such claim by appropriate proceedings. Burden is on the person who challenges the constitutional validity of any law being violative of any fundamental right guaranteed under any provision, to establish such violation before the Courts and declare the law to be ultra vires because of inconsistency with any provision of the Constitution.

33. In other words, with the declaration of the constitutional mandate under Article 13 that State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of Clause (2) of Article 13 shall, to the extent of the contravention, be void, any law made by Parliament or State Legislature or by Subordinate legislative authority become vulnerable to judicial review on the ground that the law as a whole or any part of the provision of such enactment is void because it contravenes any of the provision of Part III of the Constitution which includes Articles 14 and 19 also. However, challenge to the constitutional validity of any law is not confined to it being made in contravention of Part III of the Constitution.

34. A law may be unconstitutional on a number of grounds. For example, because it contravenes any fundamental rights specified in Part III of the Constitution or is a legislation on a subject which is not assigned to the relevant legislature by the distribution of power made in the 7th Schedule read with connected Articles or on the ground that it contravenes any of the mandatory provisions of the Constitution which imposes limitation upon the power of the legislature, for example Article 286 of the Constitution prohibits the State Legislature to impose or authorise imposition of taxes on the sale or purchase of goods where sale or purchase takes place outside the State or in the course of import of the goods or export of the goods out of the territory of India. It also abridges the power of the State Legislature to impose a tax on sale or purchase of goods in so far as it relates to goods declared by Parliament by Law to be of special importance in inter-State trade or commerce and making it subject to restriction in regard to the system of levy, rates and other incidents of tax as Parliament may by law specify.

35. Part XIII envisaging under Article 301 freedom of trade, commerce and intercourse throughout the territory of India. It also contains provision making such freedom subject to reasonable restrictions that may be imposed in terms of Article 302 in public interest and Article 303 imposes restriction on the power of the Parliament or the State Legislature by prohibiting making of any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination between one State and another by virtue of enacting laws on the legislative field relating to trade and commerce. At the same time Article 304 enables Legislature of Slate to impose certain taxes and impose reasonable restrictions on such freedom but Bill or amendment in law can be made only after receiving previous sanction of the President.

36. Likewise, the constitutional validity of any provision of a Constitution may also be subject to challenge if it operates against the law made by the Parliament or is operative beyond the boundaries of the State. The legislation can also be subjected to judicial review if it suffers from vice of excessive delegation.

37. The challenge to the legislation is not confined to the precincts of contravention of the provisions of Part III of the Constitution but it is open to challenge on multiple grounds inviting invocation of one or more provisions of the Constitution having relevance to the subject mentioned. It is in this context, the legislation is also open to judicial review, if process of legislation does not conform to the procedure envisaged under the Constitution.

38. Presumption is always in favour of the Constitutionality of laws and the burden is upon the person who challenges its validity to show that there has been a clear transgression of the Constitutional principles.

39. Principle was stated by Supreme Court in Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41. Fazl Ali, J. opined:

'that the presumption is always in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.'

40. In laying above principle, the Court approved the accepted doctrine of American Courts and quoted with approval principle enunciated in Charlie Middleton v. Taxas Power and Light Company, 248 U.S. 152:

'It must be presumed that a legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds.'

41. Privy Council stated the principle in Shell Company of Australia v. Federal Commissioner of Taxation, (1931) AC 275 (PC) thus:-

'Unless it becomes clear beyond reasonable doubt that legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will.'

42. The Supreme Court laid emphasis on presumption of constitutional validity of any enactment by assuming every state of facts which can be conceived existing at the time of legislation, in Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, when it said :-

'that in order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of times and may assume every state of facts which can be conceived existing at the lime of legislation.'

43. The principle was restated by Madholkar, J. in Burrakur Coal Company v. Union of India, AIR 1961 SC 954. Speaking for the Constitution Bench, he said:-

'Where the validity of a law made by a competent legislature is challenged in a court of law, that court is bound to presume in favour of its validity. Further while considering the validity of law the Court will not consider itself restricted to pleadings of the state and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained.'

44. The Principle stated above continued to be restated and reaffirmed by Apex Court in a recent decision in case of State of Bihar v. Bihar Distillery Ltd., AIR 1997 SC 1511, the Court reversing the judgment of High Court spoke through B.P. Jeevan Reddy, J.:-

'The approach of the court, while examining the challenge to the constitutionality of an enactment, is to start with the presumption of constitutionality. The Court should try to sustain its validity to the extent possible. It should strike down the enactment only when it is not possible to sustain it. The court should not approach the enactment with a view to pick holes or to search for defects of drafting, much less inexactitude of language employed. Indeed, any such defects of drafting should be ironed out as part of the attempts to sustain the validity/constitutionality of the enactment........... The unconstitutionality must be plainly and clearly established before an enactment is declared as void.'

45. The present is a case in which the petitioners contend that pre-condition for making ordinance of the nature by the Governor of the State has not been fulfilled, hence, the impugned amendment must be treated as stillborn. The pre-condition which the petitioners allege has not been fulfilled is that, in order to make a law of the nature as the impugned provision of the ordinance is that it is required under the first proviso to Article 31A that such law must be reserved for the consideration of the President and must have received his assent, if the law made by the Slate Legislature is to be valid, since it is a pre- condition required for enacting a law by legislature, it is also pre-requisite for making an ordinance by the Governor that he seeks instructions from the President before making the ordinance in terms of Article 213 of the Constitution.

46. The validity of impugned provision has been challenged on the ground of defect in the process of making law. This question has two pronged thrust. Firstly, whether alleged defect has relation to scheme of distribution of legislative authority between Union and State. Secondly whether in the making of any such law any other pre-condition imposed by the Constitution has been breached.

47. Coming to the first aspect, the competence to make legislation on any subject matter by Parliament or by the State Legislature is a matter of distribution of legislative power in the federal structure of our Constitution and is further controlled by other provisions of the Constitution specifically providing the restraint on exercise of legislative power by the concerned legislative authority. Principally, 1st chapter of Part 11 captioned as deals with distribution of legislative power between Union and State. Broadly speaking, Article 245 states that Parliament may make law for whole or any part of territory of India and legislature of State may make law for the whole or any part of the State. Article 246 read with VII Schedule of the Constitution unfolds the scheme of distribution of legislative power between the Parliament and the State Legislature. List I of the 7th Schedule known as Union List enumerates subjects on which Parliament has exclusive jurisdiction to make laws. List 2 of the VII Schedule, the State List, enumerates the matters on which State Legislature has exclusive jurisdiction to make laws and list 3, referred to as concurrent list in the VII Schedule, enumerates the matters on which both Parliament as well as State Legislatures are empowered to legislate. Any residuary subjects left out of three lists fall within the exclusive domain of Parliament for legislation that is made explicit by Article 248. In certain contingencies the Parliament has also been empowered under Article 249, 250, 251 and 252 to make laws in relation to matter falling in the State list.

48. Article 253 further empowers the Parliament exclusively to make any law for the whole or any part of territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.

49. Article 254 deals with contingency arising out of enactments made in respect of matters enumerated in concurrent list where both Parliament as well as Slate Legislature are competent to legislate. When two concurrent legislative authorities act on the same field, there is every likelihood of inconsistent laws coming into existence. Article 254 makes provision to meet such contingencies. While it declares that if any provision of the law made by the legislature of the State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, ordinarily the law made by the Parliament prevails over the law made by the State Legislature to the extent of repugnancy and law made by the legislature of State to the extent of repugnancy is considered void and gives way to central legislation.

50. Clause (2) of Article 254 carves out an exception to the aforesaid rule which inter alia provides that where a law made by the legislature of the State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of earlier law made by the Parliament or an existing law with respect to that matter can still prevail provided the law so made by the legislature of the Stale has been reserved for consideration of the President and has received his assent. In other words, a law made by the Stale Legislature after reserving it for consideration of President and having received his assent shall prevail in the State notwithstanding it being repugnant to the existing law made by the Parliament on the same subject.

51. However, it makes two things clear. Firstly, that it does not save such law, if subsequent to making of such law by the Stale Legislature, the Parliament enacts a law with respect to same matter by adding to, amending, varying or repealing the law so made by the Legislature of the State. Thus, we have provision under the Constitution where a law made by the State Legislature is repugnant to the law previously made or existing law made by the Parliament, if it were to remain operative in respect of such repugnancy, it is necessary that the law made by the State legislature has been reserved for consideration of the President and has received his assent. In the absence of such reservation for consideration and receiving assent of the President, the law made by the State Legislature becomes void.

52. At the same time, if two laws made by the different Legislatures are not repugnant to each other, the occasion for invoking Article 254 does not arise merely because two laws operate in the same field. The principle was enunciated by the Supreme Court in Zaverbhai v. State of Bombay, AIR 1954 SC 752, Lakhinarayan Das v. Prov. of Bihar, AIR 1950 Federal Court 59, and Amalgamated Electricity Co. v. Municipal Committee, Ajmer, AIR 1969 SC 227.

53. In the aforesaid cases, the principle enunciated is that there is nothing to prevent the State Legislature to make law with respect to any matter enumerated in concurrent list merely because there is Central law relating to same subject. Article 254(2) is attracted only when the State law is repugnant to the Union law which means two cannot stand together. In other words, the necessity to test on the touchstone of validity on the anvil of assent of President to save a State law does not arise merely on the basis of subject matter enumerated in concurrent list but depends upon examining the question of its repugnancy with existing Central Legislation occupying the same field.

54. It is not the case before us that the State Legislature was not competent to enact law on the subject Co-operative Societies or that the law made by the State Legislature is repugnant to any law made by the Parliament so as to render it void unless it had received the assent of the President as required under Article 254(2) of the Constitution. In other words, the necessity to place the law before the President for his consideration and receiving his assent does not exist for making legislation by the State so far as its competence over the subject matter is considered.

55. The other question about the validity of the legislation is whether State could not have made law unless it has received the assent of the President after reserving the Bill for his consideration under first proviso to Article 31-A(1) (c). Article 31A as it stands now reads as under:-

'31A. Saving of laws providing for acquisition of estates etc.

(1) Notwithstanding anything contained in Article 13, no law providing for-

(a) the acquisition by the State or any estate or of any rights therein to the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasures, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral oil, or the premature termination or cancellation of any such agreement, lease or licence,

shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by (Article 14 or Article 19):

provided that where such law is a law made by the Legislature of a State, the provisions of article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:

provided further where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

56. We have noticed above that as per Article 13 any law which is inconsistent with any provisions of Part III of the Constitution is deemed to be void. Articles 14 and 19 are fundamental rights guaranteed under Part III of the Constitution. While Article 34 guarantees equality before law and ensure citizens protection against any arbitrary, unreasonable and hostile discrimination in every sphere of State action, Article 19 recognises fundamental rights enumerated in Clause (1) thereof. Clauses (2) to (6) envisage that such rights can be subject to reasonable restrictions by law made in that regard.

57. Article 19 originally engrafted within its sphere right to acquire, hold or dispose of property under sub-clause (f) of Clause (1) and right to practice any profession or to carry on any occupation, trade or business. Corresponding to right guaranteed under Article 19(1)(g), Article 31 recognized it as a fundamental right that any one will not be deprived of his property save by authority of law and made it imperative that law made for such purpose must be only for acquisition of property for a public purpose and must provide for compensation either fixed by statute or by laying down principles for its determination. By Constitution 44th Amendment Act, Article 19 (1) (f) and Article 31 were omitted from the Constitution. Consequently reference to Article 31 in Article 31-A(1) (c) was also omitted.

58. However in giving effect to reforms envisaged in various fields for upliftment of people in general and to give speed to wheels of achieving constitutional goals it was felt necessary to provide certain immunities to laws which were perceived as vital in achieving such goals. First to receive attention was speedy realisation of agrarian and land reforms and came Constitution (First) Amendment Act, 1951, inserting Articles 31A and 31B in part III of the Constitution.

59. It will not be out of place to briefly recount the legislative history which led to the present form of Article 31A. In the first instance, for the first time, Article 31A was inserted vide Constitution (First Amendment) Act, 1951 with retrospective effect from the date of the commencement of the Constitution itself. Significantly, in its first incarnation, the provision was made that no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent or takes away or abridges any of the rights conferred by any provision of Part III of the Constitution. Thus, the validity of a law for acquisition of Estate, though inconsistent with any provision of part III was saved from being invalid notwithstanding the mandate of Article 13.

60. This protection was restricted in the case of Slate Legislature only if such law is made by State Legislature after it has been reserved for the consideration of the President and has received his assent. However, the original proviso remains in the same form even after its subsequent amendments as First proviso. The language is clear and unambiguous in its statement 'provided that where such law is a law made by the Legislature of the State, the provisions of this Article (i.e. Article 31A) shall not apply thereto unless such law, having been reserved for consideration of the President, has received his assent.'

61. It provides condition to be fulfilled before a law made by the State Legislature falling within Sub-clauses (a) to (e) of Clause (1) could be admitted to protection offered under Article 31A. Non-compliance of the proviso would result in the consequence of non-application of Article 31A of the Constitution, which carried the protective umbrella. I did not give the mandate for making a law of the genre stated under Article 31A(1) (a) to (e) necessarily to be made by following the procedure provided in the proviso. It was primarily concerned with the savings of agricultural and land reforms which may be undertaken by the State throughout the country and confines to protection against inconsistency with Part III of the Constitution only to law relating to acquisition of 'estates' by the State as defined in Clause (2) of Article 31A.

62. Simultaneously, Article 31B was also inserted in the Constitution by the first amendment introducing Ninth Schedule and declaring that none of the Acts and Regulations placed in ninth schedule nor any of the provisions thereof shall be deemed to be void or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of Part-Ill of the Constitution. With this declaration, it also validated the laws which have been declared ultra vires of the Constitution being inconsistent with the provisions of Part-Ill of the Constitution but which subsequently had been placed in Ninth Schedule, were to continue to be in force as valid legislations.

63. While Article 31B provides protection against possible challenge to law placed in Ninth Schedule on the ground of being inconsistent with any provisions of Part III of the Constitution, independent of Article 31A, and in wider terms, either provision does not preclude the challenge on any ground other than the one in respect of which protection has been granted that may be available to the petitioners against the validity of the provision like legislative incompetence or the violation of Article 301 or being inconsistent with Article 286 or on the ground of State law being repugnant to the provisions of Central legislation in terms of Article 254 etc. Article 31A or 31B also did not provide for any limitation in the matter of enacting law which are to be placed in Ninth schedule or to any state enactment to be necessarily brought within the province of Article 31A.

64. Article 31A was substantially amended vide constitution (Fourth Amendment) Act, 1955. The area of immunity provided under Article 31A was expanded and Clauses (b) to (e) were added, making any law on any of the respective subject mentioned thereunder not to be void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Articles 14 or 19 or 31. Significantly while extending the field of protection under Article 31A to more categories of law, the protection itself was restricted to provide protective umbrella only to the extent such laws are inconsistent with Articles 14, 19 and 31 (Article 31 omitted with Constitution 44th amendment) of the Constitution and the total immunity against inconsistency with any provision of Part-III was taken away. Proviso (1) in the present form remained the same.

65. Subsequent to the Fourth amendment, another amendment came with 17th amendment by which second proviso to Clause (1) to Article 31A was inserted which provides that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force unless the law relating to acquisition of such land, building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof.

66. The second proviso was to ensure that any agricultural land, which is falling within the ceiling limit applicable to any person, is to be acquired, its compensation shall not be less than the market value thereof because otherwise under Article 31 then existing, the compensation for acquisition of any property was to be determined in accordance with the provisions made in the law under which acquisition is being made and adequacy of compensation determined in accordance with such principles would not be called in question.

67. Proviso (1) and Proviso (2) stand in contrast. Proviso (1) makes it the condition for extending protection to any law made by State Legislature falling within the categories of Sub-clauses (a) to (e) against challenge on the ground of same being inconsistent with or taking away or abridging any of the rights conferred under Articles 14 or 19, it does not lay it as a necessary requirement that in order to be valid, the State Legislature must make law on the subject matter falling within the Sub-clauses (a) to (e) only after reserving such law for the consideration of the President and such law receives his assent.

68. To say that Article 31A will apply to State Legislature only if it has been enacted in the manner provided is far from saying that the State Legislature is not competent to make law on any of the matters enumerated in Sub-clause (a) to (e) unless such law has been reserved for consideration of the President and received his assent. It does not restrict in any manner the legislative competence of the State Legislature to enact any law falling within the sphere of its legislative field as enumerated in the State list or concurrent List.

69. Second proviso to Article 31-A(1) (c) in contrast is an injunction against the State, because of which it is not open to the State to acquire any agricultural land which is cultivated personally and which is within the ceiling limit applicable to the same unless law of acquisition by the State of any such estate or agricultural land provides for payment of compensation at a rate which is not lower than the market value thereof. It is also clear that second proviso to Article 31-A(1) (c) is not only an injunction against State but confers a corresponding fundamental right upon the person who is cultivating land personally and whose land under acquisition is within ceiling limit. This view is approved by the Supreme Court in Dattatraya Govind Mahajan and Ors. v. State of Maharashtra and Anr., AIR 1977 SC 915.

70. The legislative competence of the State legislature is derived from the entries made in VII Schedule in the State List or the concurrent list. Proviso (1) to Article 31A unlike proviso (2) does not impose restriction on the legislative competence of the State in making law on the subject falling in either the State List or the concurrent list of VII Schedule.

71. Article 31A has been primarily brought into constitutional scheme to provide immunity from challenge to laws made on the subject referred to in Sub-clause (a) to (e) of Clause (1) of Article 31A on the ground of being violative of Articles 14 and 19 which otherwise it would be subject to scrutiny in view of mandate contained in Article 13 and no more. Unless fulfilment of requirements referred to in each of the clauses and also that in case such law is made by the State Legislature, unless such law having been reserved for consideration of President and has received his assent, Article 31A itself does not come in operation.

72. Proviso (2) undoubtedly as noticed above, restricts the legislative power whether of Parliament or State Legislature, to enact a law for acquiring the land which comes within the ceiling limit, thereunder the holder must be provided for compensation at the rate not less than the market value thereof, thus conferring the corresponding right on the person whose land is acquired. This is so because second proviso to Article 31-A(1) (c) contains a constitutional mandate as to what must be contained in a law providing for acquisition of land or building and constructions appurtenant thereto so far as it relates to acquisition of such law which falls within ceiling limit prescribed. Non inclusion of necessary ingredient in the enactment makes it void to that extent.

73. We have noticed above that Article 31A, 31B and 31C form part of same scheme extending protective umbrella providing immunity against challenge to any law made by the Union or the State, as the case may be; on the ground of being inconsistent with any provision of Part III of the Constitution of India to the extent respective provision operate. The principle is well settled in this regard that the extension of protection is only to the Act as it exists at the time the immunity clause is first applicable to it. The subsequent amendment made in the Act, by itself does not enjoy same immunity against challenge unless the amending Act also fulfils the conditions of either of the provisions. In case such conditions are not fulfilled, the subsequent amendment does not become void on account of legislative competence or defect in legislative process but become open to challenge on the anvil of being inconsistent with the provisions of Part III of the Constitution. If any enactment passed by the Legislature comes within the protection granted by these provisions are subsequently amended by any Act, such amendment is also required to be consistent with the fundamental rights guaranteed by Part III of the Constitution and other limitations imposed by the Constitution upon the legislative power of the Legislature unless otherwise protected by Article 31A or the like provision.

74. The principle that Article 31-A(1) (c) does not shut out other challenges, then challenge on the ground of a law being inconsistent with Articles 14 and 19 and does not take within its compass question of legislative competence or restraint on legislative power of the State to the extent envisaged under second proviso to Article 31-A(1) (c) is accepted by a full Bench of Andhra Pradesh High Court in M. Venkatarao v. State of Andhra Pradesh, AIR 1975 SC 315. When the counsel sought to challenge the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1972 on such ground the Court said that the ground of challenge is not shut out by Article 31A, 31B or 31C as they cannot afford protection to or validate a law which is beyond the legislative competence of a legislature. This legal position is undisputed. Obviously, Court accepted that law made in accordance with Article 31-A(1) (c) receives protection only to the extent of challenge to its validity on the touch-stone of Articles 14 and 19 and no more. A law without protection of Article 31A cannot become invalid simply for that reason, but, if challenged, the grounds have to be enquired into.

75. In this connection, attention may also be invited to State of Orissa v. Chandrasekhar Singh Bhoi, etc., 1969 (2) SCC 334. It was a case where the Orissa Land Reforms Act was incorporated in the Ninth Schedule to the Constitution by the Constitution (17th Amendment) Act, 1964 with effect from 20.6.1964. The principal Act as it stood on 20.6.64, therefore, was not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III of the Constitution. The question arose whether the subsequent amendment made in the principal Act which itself was not placed in 9th Schedule enjoy the same protection as envisaged by the principal Act and whether the competence of the legislature to amend the principal Act must necessarily conform to requirement extending protection of the provisions contained in Article 31A, 31B of the Constitution. The Orissa Land Reforms Act 16 of 1960 had received the assent of the President on October 17, 1960. By the amendment made in the Constitution by the 17th Amendment Act, the principal Act was incorporated in the 9th Schedule of the Constitution w.e.f. 20.6.1964. By a notification dated September 25, 1968, certain provisions of the Principal Act other than those contained in Chapters III and IV were brought into force. The legislature of the State of Orissa amended the Principal, Act by the Act, 13 of 1965 making certain amendments in the Principal Act. In the aforesaid facts, the challenge was laid to the subsequent amendment. It was held that :-

'By the amendments made in the Constitution by the 17th Amendment Act the principal Act is incorporated in the Ninth Schedule to the Constitution with effect from June 20, 1964. The Act is therefore not liable to be attacked on the plea that it is inconsistent with or takes away or abridges any of the fundamental rights conferred by Part III of the Constitution. But the power of the competent Legislature to repeal or amend the Act incorporated in the Ninth Schedule is not thereby taken away. The amending Act passed after the enactment of the Constitution (Seventeenth Amendment) Act, 1964 does not therefore qualify for the protection of Article 31B'

76. In Sri Ram Ram Narain Medhi and Ors. v. State of Bombay, AIR 1959 SC 459, the question arose about the amendment brought into effect by Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 amending the Bombay Tenancy and Agricultural Lands Act, 1948. The Act of 1948 enjoy the immunity from challenge on the ground of being inconsistent with any provisions of Part III of the Constitution as they were the provisions saved in the first instance by the Constitution (First Amendment) Act, 1951. The question arose whether the Amending Act by itself carry with the same immunity as the Act of 1948, which it sought to be amended. It was urged that if the cognate provisions of the Act, 1948 were immune from attack in regard to their constitutionality, on a parity of reasoning similar provisions contained in the impugned Act, amending the Act of 1948 would be similarly saved. Repelling the contention, the Court said:-

'Whatever amendments were made in the by the impugned Act in the 1948 Act were future laws within the meaning of Article 13(2) of the Constitution and required to be tested on the self- same touchstone. They would not be in terms saved by Article 31B and would have to be scrutinized on their own merits before the Courts came to the conclusion that they were enacted within the constitutional limitations. They very terms of Article 32-B envisaged that any competent Legislature would have the power to repeal or amend the Acts and the Regulations specified in the 9th Schedule thereof and if any such amendment was ever made the vires of that would have to be tested.'

77. Since the amending Act has also been made after reserving it for consideration of the President and received his assent, the challenge to the enactment being inconsistent with Articles Hand 19 against which only protection was extended under Article 31A, the amended provisions were held to have protection under Article 31A and carried with it immunity from challenge on the ground of being inconsistent with Articles 14, 19 and 31 of the Constitution of India. It was also observed by the Court while reaching this conclusion that the impugned Act being within the competence of the State Legislature, the competency of the State Legislature is to be tested de hors of Article 31A and if conditions of Article 31A are satisfied, the law made by the State Legislature within its legislative field, such law also enjoy immunity from challenge on the ground of being inconsistent with the provisions of Article 14, 19 and 31 of the Constitution.

78. In Mahant Shankershan Ramanuja Das Goswami and Ors. v. State of Orissa (Supra), the Court approved the view that protection under Article 31A can be extended to amending laws, provided they fulfil the conditions of Article 31A. It was said 'Benefit of Article 31A is available not only to those laws which by themselves provide for compulsory acquisition of property for public purpose but also to laws amending such laws, provided assent of the President is obtained to such amending Act.' Thus for getting the protection of Article 31A, the amending Act stands independent of the Act it seeks to amend to be examined whether it also has the protection of Article 31A or not on the anvil of provisions contained in Article 31A itself. But conclusion that amending Act does not fall within protection afforded by Article 31A because it does not fulfil the requisites of Article 31A, does not render it automatically invalid to shut out enquiry into its validity otherwise.

79. In Ramanlal Gulabchand Shah etc. v. State of Gujrat and Ors., AIR 1969 SC 168, considering the scope of enactment falling within the purview of Article 31A, it was said:-

'If Article 31A give protection, there would be an end of to the appellant's contention, if not, the matter must be considered on the principles settled by this Court'.

80. The above observation clearly implies that merely because an enactment does not conform to Article 31A or does not fall within the province of protective field of Article 31A, it does not automatically cease to be a valid law nor it can be presumed to be void being not having the protective umbrella of Article 31A notwithstanding that the enactment may be falling in one of the Sub-clauses (a) to (e) of Clause (1) of Article 31A. It was a case relating to acquisition of management of estate under Bombay Tenancy and Agricultural Lands Act, while enacting laws taking over the management of the estate. The contention was raised that the case falls within the protection afforded by Article 31A as the matter relates to Sub-clause (b) of Clause (1). The contention in regard to that was whether the impugned enactment fulfills the requisite condition of prescribing limited period for taking over the management of properties and if not what is its effect. It is in this context the aforesaid observations were made holding that loosing the protection of Article 31A would entail the consequence of examining the validity of provisions on the well known principles set for testing the validity on the touchstone of provisions of Part III of the Constitution without the protective umbrella. But the consequence would not be to presume such provision, though falling in one of the matters envisaged under Article 31A, but not conforming to the requirement of Article 31A except of second proviso by itself to be void.

81. In Sajjan Singh and Ors. v. Maharashtra Sugar Mills Ltd. Bombay and Ors., AIR 1965 SC 845, also the Apex Court accepted the competence of State Legislature to amend or repeal the law falling within its legislative field notwithstanding falling within the protective umbrella of Article 31A or for that matter under other protective provisions. The amended provisions do not receive protection of the protective provisions automatically unless they fulfil the same criterion independently. For example if any provision in the parent Act has been placed in the Ninth schedule, the amended provision inserted in the parent Act does not automatically get immunity from challenge on the ground that parent Act being in Ninth Schedule is protected against challenge on the ground of being inconsistent with any provisions of Part III of the Constitution until the amended Act is also put in the Ninth Schedule.

82. Similar principle follows if the parent Act enacted by State Legislature having been reserved for the consideration of the President and received his assent in respect of any matter enumerated in Clauses (a) to (e) and also fulfils requirement of condition in respective clauses, the consequential amendment by Legislature having competence to legislate on the subject, the amendment Act could not receive same protection of Article 31A by itself unless the amended Act fulfils the requirement of securing protection. In case it does not fulfil any of such conditions to get immunity from challenge on the ground of being inconsistent with the provisions of Part III of the Constitution, the validity of such provisions has to be tested on general principles applicable to enquire into Constitutionality of such provisions, but the same cannot be assumed to be void only because it is not in accordance with the provisions of Article 31A.

83. The principle was also restated in like terms in the Godavari Sugar Mills Ltd. v. S.B. Kamble and Ors., AIR 1975 SC 1193.

84. The conclusion is that the legislative power of the State to make or to repeal or to amend an existing law within its legislative field falling within Sub-clause (a) to (e) of Section 31-A(1) remain unimpaired by 1st proviso to Article 31A.

85. Non adherence to that procedure would make Article 31A inapplicable to such law. The consequences would be that such law made by the State Legislature without the assent of the President would be vulnerable to challenge on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or 19 of the Constitution.

86. If Article 31A is not applicable, the mandate of Article 13 would prevail while examining the validity of any provision of law falling in the categories including Article 31A and if it is established by the challenger that law under challenge is inconsistent with the provisions of Articles 14 and 19 of the Constitution it will be void because of provisions under Article 13 of the Constitution but not because Article 31A is not applicable.

87. Next question which requires consideration in this context is that in the present case the impugned provision has been inserted in the parent Act Rajasthan Cooperative Societies Act, 2001 which had been enacted after it was reserved for consideration of the President and has received his assent, by promulgation of an ordinance by the Governor without seeking instructions of the President. The power to promulgate an ordinance when legislature is not in session is conferred by Article 213 of the Constitution on the Governor of the State. Whether the ordinance made by the Governor which enacts a provision for taking over the management of the Cooperative Societies until elections are held for constitution of new committee require the President's instruction in case new committee is not constituted until expiry of the term of existing committee.

88. Article 213 of the Constitution, which is relevant for the present purposes, reads as under: -

'213. Power of Governor to promulgate Ordinances during recess of Legislature.-(1) If at any time, except when the legislative assembly of a State is in session, or where there is a legislative council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:

provided that the Governor shall not without instructions from the President, promulgate any such Ordinance if -

(a) Bill containing the same provisions would under this Constitution has required the previous sanction of the President for the introduction thereof into the Legislature; or

(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or

(c) an Act of the legislature of the State containing the same provision would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President,

89. The relevant provisions of Article 213 which concerns the present controversy is proviso to Clause (1) of Article 213. Three contingencies have been envisaged in which the Governor cannot promulgate an ordinance except on receipt of instructions from the President. Three contingencies envisaged are (i) where a Bill containing the same provisions as has been promulgated by an Ordinance would under the Constitution have required previous sanction of the President for introduction thereof into the Legislature, (ii) The second contingency envisaged is that the Governor would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President or (iii) third contingency is whether an Act of the Legislature of the State containing the same provisions would under the Constitution have been invalid unless, having been reserved for the consideration of the President and had received his assent. Apart from first proviso to Article 31A of the Constitution, no other provision has been pressed into service by the learned counsel for the petitioners which would bring its case under any of the clauses of proviso to Article 213 so as to require receipt of President's instructions before promulgation of the impugned Ordinance.

90. As we have noticed above, a Bill containing the provision for taking over the management of any Cooperative Society would not have required the previous sanction of the President for introduction thereof into the Legislature nor it would have been, under the circumstances, invalid unless it had been reserved for the consideration of the President and received his assent. The language of proviso to Article 31A does not support the contention of the learned counsel for the petitioners that the Act of Legislature of the State containing the same provisions would have been invalid unless it has been reserved for the consideration of the President and had received his assent or it required previous sanction before introduction into the Legislature.

91. In this connection, it will not be out of place to refer to some of the provisions of Constitution where-under preconditions as envisaged in Clause (1) or (III) of proviso to Article 213 has been envisaged.

92. Article 304 of the Constitution which imposes condition on introduction of a Bill and its enactment into law by the State Legislature to be operative. Article 304 of the Constitution reads as under:

'304. Restriction on trade, commerce and intercourse among States.-

Notwithstanding anything contained in Article 301 or Article 303, the Legislature of a State may be law-

.........................................

(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest;

Provided that no Bill or amendment for the purpose of Clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.'

93. The proviso to Article 304 of the Constitution makes it abundantly clear that any enactment which State Legislature intends to make, falling within the province of Article 304, it can do so only if before introducing the Bill to that effect in the State Legislature, the previous sanction of the President is obtained for its introduction. The Language used in the proviso to Article 304 is in wide contrast with the first proviso to Article 31A.

94. It may not be out of place to mention here that proviso (1) to Article 31A and proviso to Article 31C are couched in the same form. The two Articles proviso immunity from challenge on the ground of being violative of some or all the provisions of Part III of the Constitution on fulfilment of certain conditions and those conditions being not fulfilled, the protection is not made available and the law becomes vulnerable to challenge in view of clear provisions of Article 13 of the Constitution. While Article 31A and Article 31A envisage an extension of protection to the law made by the State Legislature from challenge to its validity on the ground of being inconsistent with any one or more provision of Part III only if it has been reserved for consideration of the President and received his assent, failure to do so only takes away immunity and does not effect otherwise the legislative competence or validity of law. It is only if on being tested on the altar of guarantees offered under Part -III of the Constitution if the law is found to be inconsistent with any provision of Part III of the Constitution or other provisions of the Constitution the law would be declared invalid otherwise it would be a valid law. The law made by the State Legislature without previous sanction of the President which falls within the province of Article 304 would be invalid because of the embargo envisaged under Article 304 of the Constitution itself against making of legislation by State Legislature except with the previous sanction of the President to introduce the Bill containing such provisions as envisaged under Article 304. It would not call for any other investigation for making it invalid.

95. Simultaneously, Article 254 of the Constitution declares a law made by the State Legislature void to the extent it is repugnant to the law made by the Parliament. In such circumstances, the validity of such law can only be restored if such law is made by the State Legislature by reserving it for the consideration of the President and it has received his assent.

96. It will be opposite to read the three provisions in juxtaposition to receive clear communication about the distinction between the three and consequence of failure to comply with such provisions:

A (proviso to

Art. 31 -A)B (proviso to

Art. 304 (b)C (proviso to

Art. 254)

Provided that where such law is a law made by the Legisla-ture of a State, the provisions of this arti-cle shall not apply thereto unless such law, having been re-served for the consid-eration of the President, has re-ceived his assent;Provided that no Bill or amendment for the purposes of clause (b) shall be intro-duced or moved in the Legislature of a State without the pre-vious sanction of the President.(2) Where a law made by the Legisla-ture of a State with re-spect to one of the matters enumerated in the Concurrent List contains any provi-sion repugnant to the provisions of an ear-lier law made by Par-liament or an existing law with respect to the matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has re-ceived his assent, prevail in that State:Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with re-spect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legisla-ture of the State.

97. While the condition envisaged under Article 304 of the Constitution falls in Clause (a) of proviso to Article 213(3), the requirement of Article 254 for making a State Law, which is repugnant to central law to be valid and prevail over Central Legislation bring it within the purview of Clause (c) of Article 213(1). The requirement of proviso to Article 31A neither falls in Clause (a) or Clause (c) of proviso to Article 213.

98. Likewise after a Bill has been passed by the Legislative Assembly of a State, or by both Houses, in case a State is having a Legislative Council, it is to be presented to Governor under Article 200 of the Constitution. On presentation of such Bill, the Governor has three courses, which he can adopt. He has to make a declaration that either

(i) he assents to the Bill, or

(ii) he withholds assent therefrom or

(iii) he reserve the Bill for consideration of the President.

99. While Article 200 does not contemplate in detail in which case the Governor will reserve the Bill for consideration of the President, but it appears fairly clear that Reservation is an alternative to his giving or withholding assent to the Bill. In the matters where reservation is compulsory the Governor has no option but has to adopt such procedure e.g. In the case governed by second proviso to Article 200 itself, which says that any Bill which in the opinion of the Governor would if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill, the Governor shall not assent to such Bill but shall reserve for the consideration of the President.

100. Clause (b) to proviso to Article 213 refers to cases where reserving of the Bill for consideration of the President, depends on the discretion of the Governor and not a compulsion under any provision of the Constitution. Since the power to promulgate Ordinance is not a discretionary power but has to be exercised with the aid and advice of Ministers, where on such advice the Governor is of the opinion that had the law which he is to promulgate, were presented before him as a Bill of Legislative Assembly he would have opted to reserve it for consideration of the President, then he is required to seek instruction of President before promulgating such law. However, reservation of a Bill for consideration of the President is a question of discretion to be exercised by the Governor and exercise of such discretion is not justiciable. In this regard, reference may be made to Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019. It cannot also be contended that since Principal Act was reserved for consideration of President because in the opinion of Governor it must receive protection under Article 31A every amended to such Bill must also have to be reserved by the Governor for the President's consideration, since the reservation in first instance was also not made under any Constitutional compulsion. In view thereof, the impugned provision does not fall within the purview of Clause (b) of proviso to Article 213, so as to affect the validity of Ordinance for want of instruction of the President.

101. As none of the conditions envisaged in Clause (a), (b) or (c) of proviso to Article 213 (I) of the Constitution have been shown to exist which would necessitate the Governor to seek instructions from the President before promulgating the impugned provision of Ordinance in question. In fact, no contention to that effect has been raised before us. The only contention raised before us is that the Act of the Legislature containing the impugned provision would have been invalid unless it has been reserved for the consideration of the President and had received his assent because of first proviso to Article 31A the Ordinance was required to be passed after receiving the assent of the President.

102. Thus, upshot of the aforesaid discussion is that neither Article 31A makes a law made by the State Legislature invalid without having been reserved for the consideration of the President and receiving his assent; nor the Ordinance containing impugned provisions required instructions of the President before its promulgation by the Governor.

103. In view of the above discussion, we have no hesitation in coming to the conclusion that merely because impugned provision of Ordinance No. 1 of 2004 has not been promulgated under instructions from the President, it does not render it invalid, suffer from unconstitutionality for reason of any defect in legislative process in breach of constitutional requirement under Article 31A or Article 213 of the Constitution, but amending provision has to be tested on the general principles applicable to examine the constitutional validity of the provision, in the light of challenge made.

104. Considering that non compliance of the first proviso to Article 31A by itself may not render the impugned provision of the Ordinance promulgated by the Governor on the subject, which the State legislature is otherwise competent to legislate, void, an alternate contention was also raised that impugned provision inserting Sub-section (2-B) in Section 30 is void being violative of Article 14 and 19 of the Constitution as it empowers the State Govt. to take away the management of the Cooperative Societies in Rajasthan without providing any guidelines for indefinite period, which amounts to depriving the Cooperative Societies and members of its general body to manage its own affairs and interfering with their freedom of carrying on trade or business, arbitrarily and unreasonably, resulting in breach of Article 14 and 19(1)(g) of the Constitution.

105. The alternate contention that unprotected by Article 31A of the Constitution, Section 3 of the Rajasthan Cooperative Societies (Amendment) Ordinance, 2004 promulgated on 19.2.2004 to the extent it amends the Rajasthan Cooperative Societies Act, 2001 by inserting Sub-section (2B) in Section 30 suffers from the vice of being violative for Articles 14 and 19 of the Constitution shall have to be examined on general principles set by Courts for testing the validity of law enacted by competent legislation vis-a-vis alleged breach of any provision of fundamental right.

106. By the impugned provision of the Ordinance, Sub-section (2-B) in Section 30 of the Principal Act has been inserted as under:-

'(2-B) If, before the expiry of the term of the committee of a society, a new committee is not constituted, the Government may direct the Registrar to appoint a Government servant as an Administrator to manage the affairs of the society till a new committee is constituted.

Provided that no member of the committee replaced by an Administrator under this sub-section shall be deemed disqualified under Sub-section (5) of Section 28.'

107. Apart from the amendment affected in Section 30 of the Rajasthan Act, 16 of 2002 other amendments have also been made in the Act of 2001. Principal, among such amendments, is that Chapter V of the Act of 2001, which concerns with the elections of the management committee of a Cooperative Society, has been substituted in its entirety. Out of the whole provisions of the Ordinance only challenge is to Section 3 by which Sub-section (2- B) of Section 30 has been substituted. As noticed above, there is no challenge to other provisions of the Ordinance.

108. The impugned provision is made to provide for the contingency of not holding elections of a new managing committee to take over the management from the existing committee on the expiry of its term. The question is integrally connected with the issue of timely elections of successive management committees. The impugned provision is linked with the constitution of successive management committees in time and aimed to ensure continuity of democratic process in managing the affairs of Cooperative Societies.

109. The relevant provisions to which our attention has been drawn and some argument was sought to be raised on that basis are that Section 24 of the Rajasthan Cooperative Societies Act, 2001, which took place of the Rajasthan Cooperative Societies Act, 1965 by repealing it, provides that final authority in a cooperative society shall, subject to the provisions of the Act and the Rules, vest in the general body of the members. It also envisages that nothing in Section 24 shall affect any power conferred on a committee or any officer of a cooperative society by the Rules or the bye laws. Section 27 ordain that general body of the cooperative society shall entrust the affairs of the management of the society to a committee constituted in accordance with the bye laws.

110. Thus, notwithstanding general control vesting in General Body of members, management of society vests in a management committee under Section 27 as a statutory mandate. Significantly, it made two provisions about the duration of the committee constituted under Section 27, which was a departure from the repealed Act to the corresponding provisions of repealed Act, which we shall shortly advert to.

111. Firstly, under proviso to Sub-section (1) of Section 27, it was envisaged that if any society is registered after the commencement of the Act, 2001, the persons who had signed the application to register the society were empowered to appoint a committee to conduct the affairs of the society for the period of three months only from the date of registration and such committee shall cease to function on the constitution of new committee which is required to be constituted within a period of said three months in accordance with the bye laws. This provision made it imperative that first elected committee to be entrusted with the affairs of the society has to come into existence within three months of the registration of a new society which gets registered after the commencement of the Act of 2001.

112. Secondly, a general provision was made that every society shall have 11 elected members in the committee, who shall be elected by the general body of a society for a term of five years. Thus term of an elected committee too is fixed by statutory provision in parent enactment and was not left to be provided by subordinate legislation.

113. The provisions relating to elections in the cooperative society originally envisaged under Chapter V of the Act of 2001 that superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the committees of the co-operative societies shall vest in the State Election Commission. Elections of the members of the committee were to be conducted in accordance with the provisions of Act, Rules and bye laws of the society. The manner of conducting elections by the State Election Commission was required to be prescribed by the Rules, for apex and Central Cooperative Societies, and for the Primary Agriculture Credit Co-operative Societies, Large Are Multipurpose Co-operative Societies, Farmers Service Societies, Agriculture Marketing Societies, Primary Land Development Banks, Urban Banks, Consumer Societies, Dairy Co- operative Societies, Weaver's Co-operative Societies, Housing Co- operative Societies and for all such co-operative societies, having a share capital of rupees five lacs or more and also for such class of societies as may be notified by the State Government. Under Section 34 it was envisaged that any society other than those mentioned in Section 33, as noticed above, elections for the members of the committee and its Chairman shall be conducted in the manner, as may be prescribed, in the general body meeting called for the purpose by an Election Officer appointed by the society itself. But the elections could also be conducted by the State Election Commission where a society requests to do so. Significantly, Section 34 also empowered and obligated the State Election commission to hold election of the committee of the cooperative society if a society does not conduct election in time.

114. A duty was cast under Section 35 on the Chief Executive Officer of the Society to furnish all information and provide all facilities to the Election Commission or a person authorised by it, which he may except for conducting a free and lawful election. Section 36 envisaged that election process once commenced shall not be postponed for any reason, save for a natural calamity or any breakdown of law and order Section 37 enabled the State Election Commission to issue such instructions, as it may consider reasonable for conducting impartial and lawful elections.

115. Prior to commencement of the Act of 2001, it is common ground between the parties, that no lime limit for the life of the management committee under the Act of 1965 was prescribed by parent statute and it was left to be determined by the bye laws. According to the bye laws, an elected management committee was required to be elected for a period of three years but its life were to continue until a new elected committee comes into existence to take over the management from the outgoing committee.

116. The aforesaid fact was also taken into consideration by this Court in Dr. Hari Singh's case (supra), relied on by the learned counsel for the petitioners which also make it distinguishable on the basis of difference in the scheme of provisions relating to constitution of successive committees. However, under the new Act, no such provision exist under the Statute or in the Rules or bye laws extending the life of elected management committee beyond the period of five years envisaged under Section 27 (2) nor any such provision was envisaged in bye laws. In other words, there were to be a hiatus in the matter of management of societies after the expiry of five years of the duly constituted management committee if the new management committee is not constituted earlier.

117. There was also no specific provision about the time or period during which elections of successive committees were to be held.

118. It is also common ground between the parties that all the existing committees, which are affected by the impugned orders issued by the State Govt. in exercise of the powers conferred on it under the newly inserted Sub-section (2-B) of Section 30, had their last elections long before commencement of the Act of 2001 and had overstayed not only period of three years prescribed in the respective bye laws of the respective Cooperative Society before commencement of Act of 2001 but much beyond five years envisaged under Section 27 (2) of the Act of 2001. In fact, almost two years have elapsed since commencement of Act of 2001, yet no election process for constituting new management committee have even been initiated. It is also a common ground between the parties that no attempt was made by the respective cooperative Societies to hold elections after the expiry of the term of three years of the respective Management committees. Another common ground between the parties is that with the commencement of the Act of 2001 prescribing a fix period of the life of management committee of five years, which has already expired in most of the cases, and there being no provision for staying in saddle until the next election, the period of existing committees were successively extended from time to lime and that extended period has also come to an end without holding any election.

119. In other words, the democratic set up envisaged under the Cooperative Societies Act, 1965 in the matter of managing the affairs of the cooperative societies and retained under the Act of 2001 had come to standstill. Keeping in view that the obligation was cast on the State Election Commission under Section 32 to hold elections of the managing committee where the elections have not been held even after the expiry its period and it was for the society to furnish all necessary informations to Commission for enabling it to hold Elections, but the system did not yield its objects because non prescription about time when elections are to be held, to make the provision more effective and workable, the Ordinance No. 1 of 2004 substituted whole of Chapter V dealing with the Elections of the Society by substituting Sections 32 to Section 37.

120. The Salient features of these new provisions are that in place of State Election Commission, the authority to conduct election of the committee and its Chairman was vested in an officer of State to be constituted as the State Cooperative Election Authority (for short Election Authority) whose appointment is to be made by the State Govt. by publishing a notification in official gazette. The Election Authority was made an independent agency for conducting elections of the committees of the Cooperative Societies under the Act and the Rules made thereunder. The role of bye laws in conducting the elections was brought to an end.

121. The significant departure which was made with the previous provisions is that Section 34 was substituted to ensure that the elections of a committee of any society are held before the expiry of the term of existing society. For ready reference, it will be apposite to reproduce Section 34 as substituted by Section 4 of the Ordinance No. 1 of 2004:-

'34. Preclude to the elections.-(1) The Chief Executive Officer of every co-operative society specified in Sub-section (1) of Section 33, shall send a written request in such manner, as may be prescribed, to the authority to conduct elections of its committee, six months before the expiry of the term of the existing committee.

(2) On receipt of the request under Sub-section (1), the authority shall ensure that the election is conducted before the expiry of the term of the existing committee.

(3) It will be the duty of the committee of a society to ensure that all the information, books and records, which the Authority may require for the purpose of election, are updated and made available in time to the Authority or a person authorised by it for the purpose.

(4) The committee of the society shall ensure that the society provides all the assistance to the Authority, as may be required by it for conduct of the election.

(5) The process of election of a co-operative society, once started, shall not be stopped or postponed for any reason, save for a natural calamity or breakdown of law and order.

122. A perusal of the aforesaid provision goes to show that duty has now been cast on the Chief Executive Officer of a Cooperative Society to send a written request in such manner, as may be prescribed, to the authority to conduct election of its committee at least six months before the expiry of the term of the existing committee. An obligation has been cast on the authority to ensure that elections are conducted before the expiry of the term of existing committee after receipt of the request from the Chief Executive Officer. An obligation has also been cast on the outgoing committee under Sub-section (3) of Section 34 to ensure that all the information, books of record which the election authority may require for the purpose of election are updated and made available in time to the authority or person authorised by it for the purpose. Other provisions have also been amended which, for the present purpose, are not relevant.

123. From the reading of Chapter V as has been substituted by the very Ordinance, the legislative policy is clear that election of the committee of a society must, in all circumstances, be held before the expiry of the term of existing committee, for initiating the process of elections obligation has been cast on the Chief Executive Officer, the committee and the Election Authority to act within the period prescribed before which the election process should be completed. Very vital discernible change in respect of election is that statutory duty has been cast on the Chief Executive Officer of the Cooperative Society concerned to initiate the process of election by making a request for holding such election to the Cooperative Election Authority at least six months in advance before the expiry of the term of existing committee.

124. These provisions are apparently enacted to remove the lacunae or defect in original provisions, making it clear that committee constituted vide election comes for a term of five years and it on its own does not carry authority to continue beyond five years and must give way to newly elected body. To make it sure that such committee which has no right to continue may not extend its life by default in constituting its successor committee, enabling provision was made to fill the vacuum created on account of non constitution of new committee for any reason, by conferring power on the State to step in to fill in such vacuum, but only till next elections are held in accordance with calender set up by newly substituted Chapter V of the Act of 2001, as noticed above.

125. It is in that light and aforesaid background, if the impugned provision of Ordinance viz. Section 3 inserting Sub-section (2B) in Section 30 of the Parent Act is to be considered, it sounds ordinarily to be a transitory provision or to be invoked in exceptional case where for some unavoidable reasons the elections are not held in time before the expiry of the term of existing committee. In the cases at hand, all the committees of the cooperative societies have overstayed without showing any inclination to hold new elections for constituting successive committees conforming to the democratic set up envisaged for the management of the cooperative societies whether under the Act of 1965 or under the Act of 2001.

126. Since the Act of 2001 in its original incarnation while made a provision prescribing the term for committee elected by the general body under Section 27, the statute did not provide explicitly about the consequence of not holding elections before the expiry of term of existing committee. Since no provision has been made in the Rules or the bye laws for the continuance of the committee after the expiry of the term of existing committee, Under Section 27 (2) of the Act and perhaps such provision could not be made by authority acting as subordinate legislative authority, which would be contrary to Section 27(2) of the principal enactment. These provisions have not been subjected to challenge and in our opinion, rightly so. As the wording of previous enactment has shown the deficiency in legislation, which made it possible for elected management committees to continue its terms indefinitely with impunity, continued its life beyond the period of five years until next elections are held, even if belated it became apparently a situation of mis-management and the existing committee not discharging its obligation to take effective steps to hold periodical elections of the committee.

127. The impugned provision, therefore, cannot be held alien to existing provisions, and its object being clearly to effectuate the policy of the statute in ordaining management of cooperative society by a duly elected committee which has a term of five years and to see that new committee is constituted by democratic process well in advance to ensure the democratic fibre of its management does not loose its foothold, the provision cannot also be held to be unreasonable and arbitrary as violative of Article 14 of the Constitution of India.

128. Taking over the management of cooperative society, whose existing managing committee has outlived its term of life fixed by statute also does not result in divesting the existing committee any of its right, which under the scheme come to an end on expiry of its elected term.

129. Since in terms of Section 24 read with Rule 27, constitution of management committee by election is a statutory necessity, it is an essential feature of the scheme of the Act of 2001 that notwithstanding general power of governance vest in general body, such power is subject to requirement of management of cooperative society through a duly elected committee. By making provision like Sub-section (2-B) of Section 30, the power of general body of ultimate right to governance is also not unreasonably impaired. It retains the right to elect new committee which is mandatory requirement of law. The members of the existing committee, whose term has expired, on appointment of administrator under Section 30(2B) does not incur any disqualification to be re-elected, if otherwise the committee is to be removed under Section 30(1) such consequences would follow.

130. It may not be out of place to recall that even without amendment, the State Election Commission now substituted by the Election Authority was authorised suo moto to hold election of all cooperative societies where they have failed to hold elections in time which could only have reference to not holding of election before the expiry of the term. The fact situation noticed by us above clearly betrays the circumstances which necessitated the making of the provision of holding periodical elections effective.

131. Viewed in this light, the contention of the learned counsel for the petitioners that Sub-section (2-B) of Section 30 suffers from vide of indefiniteness because it does not prescribe numerical limit of period for which the Administrator shall take over the management but leave it indefinite by ordaining him to continue until next committee is constituted. It is contended that provision is designed to take over the management for indefinite period to usurp the control of the co-operative society and destroy its autonomy. Sub-section (2-B) which in term by itself does not prescribe a time limit in numerical for taking over the management of the cooperative society cannot be read in isolation. It has to be read in the context of contingency in which it becomes operative and other provisions of Act which deal with provision to bring into existence the New Management Committee, the end stage upon which Administrator is to continue. It does fix period limit for which the Administrator could continue to manage the affairs of the committee i.e. till the new committee is constituted. Like any other provision where no exact time-limit is fixed by the Statute to discharge an obligation, it inheres into it that such obligation shall be discharged or power will be exercised within reasonable period. Ordinarily, reasonable period depends on facts and circumstances of each case and scheme of the statute under which an authority is to act.

132. In the present case, a definite guideline emanates from the Statute itself which is contained in Chapter V, as substituted vide Ordinance No. 1 of 2004. Constitution of New committee under the amended provisions is envisaged apparently well in advance before the expiry of the term of existing Committee, and therefore, it must be read with Sub-section (2-B) of Section 30, Constitution of new committee cannot be delayed on taking over the management by the administrator beyond the shortest possible reasonable period during which the elections are to be conducted. It may also be noticed that election process once started cannot be postponed except for natural calamity or breakdown of law and order as per Sub-section (5) of Section 34 as substituted by the Ordinance 1 of 2004 and as was earlier envisaged under Section 36.

133. Looking to the nature of obligation cast on the Election Authority to conduct election after receipt of request from the Chief Executive Officer, who has to commence the proceedings at least six months before the expiry of the period of existing committee, it is clear indication that elections are to be conducted within six months from the date of the receipt of request from the Chief Executive Officer. If that is so, looking to the object of insertion of Sub-section (2-B) which directly relates to not holding of the election before the expiry of the term of a committee of the society and is to continue until new committee is constituted, inheres in it that on appointment of Administrator, is to effectuate the policy of statute that a management committee which has been elected for a term of five years but could not be replaced by a newly constituted committee, is replaced as soon as possible by a newly constituted committee elected in accordance with provisions of law under an independent person. This obligation inheres in it a duty on the part of the Administrator, as Chief Executive of the society to set the process of elections for constituting a new committee as expeditiously as possible in motion by himself requesting the election authority or causing it to be made by Chief Executive Officer if there is one appointed under Section 29 of the Act and submit the relevant information for that purpose to the Election Authority. On receipt of such request, the Election Authority shall be under an obligation to hold such election within such time, as it would have been required to hold in case such request would have been received by the Authority before expiry of the term of the present committee in time. Such period has been prescribed under Section 34 to be six months. That be also considered the period within which Administrator and the Election Authority combine to hold election after appointment of the Administrator.

134. Prior to expiry of the term of existing society, the provisions of Sub-section (2-B) cannot be invoked and the existing society is allowed to continue to its full term.

135. It is in the context of above provisions contained in Chapter V concerning elections, Sub-section (2-B) of Section 30 has to be construed. Sub-section (2-B) has to be taken as providing consequence of not coming into existence of newly elected committee to take over the management from existing committee for any reason including failure on the part of the Chief Executive Officer, who is to make a request to hold elections well in advance before six months of the expiry of term of existing committee, or non-furnishing of requisite information by the committee to the election commission or the like. The appointment of Administrator to manage the affairs of the society until new committee is constituted, leads to legitimate inference that taking over of management is with the object of setting up in motion the process of election of management committee as envisaged in Section 27 read with Section 34 as far as possible within six months. If for any reason the elections cannot be held because of natural calamity or breakdown of law and order, the period during which such situation continues can be excluded for the purpose of counting the said period. Viewed in that light, it cannot be said that newly inserted Sub-section (2-B) in Section 30 results in conferring and unguided or uncanalised power on the Government to take over the management of the cooperative society by appointing an Administrator for indefinite period without providing any guidelines. The object for appointment of Administrator being clearly spelt out in Section 30(2B), the guideline for fulfilling that object by holding elections expeditiously is inherent in provisions of Chapter V of the Act of 2001, as substituted by the Ordinance No. 1 of 2004.

136. Making of this provision, in the circumstances noticed above, cannot be considered to be unreasonable conferring unguided and uncanalised power on the State to take over the management of the co-operative society, nor can it be termed as unreasonable restriction on the freedom of the members of the co- operative society to carry on its trade or business. Hence it cannot be considered a law inconsistent with any provision of the Constitution, particularly of Article 14 or 19 with reference to which the contention has been raised.

137. Assuming the contention of the learned counsel for the petitioners to be correct to the extent that without providing a fixed time limit in numerical number for taking over the management, the provision would fall outside Article 31A of the Constitution of India and notwithstanding it might have received the assent of the President. As discussed above, in such event also the impugned provision will lose protection of Article 31A as it will not be applicable. In that event also the provision which becomes open to challenge on the ground of being inconsistent with Articles 14 and 19 of the Constitution. Since we have come to conclusion that Sub-section (2B) inserted vide Section 3 of the Ordinance No. 1 of 2004 in Section 30 of the Act of 2001 is not violative of Article 14 and 19, the result will be the same.

138. In the facts and circumstances, the object of the amending Ordinance is clearly spelt out by indicating the contingency on the occurring of which only the power conferred under Section 30(2-B) can be exercised by the State Government, and restricting the continuance of an Administrator until new committee is constituted indicating the duty it has to discharge as an Administrator is to secure conduct of election of new committee in terms of procedure laid under Chapter V, which makes elaborate provisions for holding election within a definite time schedule commends for itself that the State has not been conferred with unguided and uncanalised power to be exercised under Sub-section (2-B) of Section 30 as substituted by the impugned Ordinance.

139. Apart from the aforesaid, even in the existing provisions which had the protection of Article 31A, the Administrator could have been appointed for non-holding of the elections for indefinite period, as that would amount to failure on the part of the Committee to act according to provisions of Statute as a result of failure on its part to initiate the process of election in time.

140. Under existing provisions, Sub-section (1) of Section 30 envisages taking over of management of a committee and appointment of Administrator where the committee does not discharge its functions properly. Since provision of newly substituted Chapter V are not under challenge, it is the responsibility of Chief Executive Officer to intimate the date on which the term of existing committee expires and request the Election Authority to hold elections, and for the Committee to make available all necessary informations for conducting the elections. In such circumstances, power to take over the management by removing the existing committee, even if it is assumed that its life continue even after expiry of the term for which it has been elected, can be exercised with reference to Section 30(1). The effect of appointment of Administrator under Section 30(1) would be to render members of existing committee disqualified under Section 28(5) read with Section 30(1) of the Act of 2001. However, in making specific provision to meet such contingency by inserting Sub-section (2-B) in the case falling within the ambit of Section 30(2B) will be excluded from the purview of Section 30(1) and an appointment of Administrator on expiry of the term of existing committee, the members of the existing committee do not attract disqualification for that reason alone. Viewed from this point, the provision is more beneficial and act in furtherance of achieving true democratic governance of co-operative societies.

141. In view of aforesaid discussion, impugned provision viz. Section 3 of the Ordinance which envisages insertion of sub- Section (2B) in Section 30 is not inconsistent with either Article 14 or Article 19, apart from not contravening Article 31A or Article 213 of the Constitution and we hold it to be intra vires and validly promulgated.

142. At the same time it must be made clear that if power has been exercised malafide for ulterior motive, it is always open to challenge by way of judicial review for necessary redressal, or for that matter if after appointment of the Administrator, the process of conducting elections to constitute new committee is not commenced promptly to get the new committee constituted and is unduly delayed, a mandamus can always be sought like in any other case of failure to discharge such duty within reasonable time; as indefinite continuance of Administrator without any insurmountable cause may be viewed as an abuse of the power. There can be no doubt that the provision is not meant to substitute Administrator for the Elected Committee for indefinite period, to usurp control over the management of any cooperative society which has been envisaged as an independent autonomous existence.

143. In this connection, our attention was invited to Sultan Singh v. State of Rajasthan and Anr., 1988 W.L.N. (UC) 244. The question arose in respect of orders issued by the Registrar, Cooperative Societies by which the Executive Committee of Krya Vikray Sahkari Samiti Ltd., Abu Road was removed and Assistant Registrar, Cooperative Societies, Sirohi was appointed as its Administrator. The Elected Chairman of the committee since 13.1.1985 filed the petition who had again been elected as Chairman of the committee on 2.8.1987. State had taken the stand that in exercise of its power under Section 139 of the Act of 1965 read with Rule 110 of the Rules, 1966 general order has been issued applicable to all the marketing societies through out the Rajasthan whose Directors have completed the term of three years, exempting the applicability of provision of Section 36(1) and 36 (6) and Rule 38(2) and 38(4) to strengthen the democratic set up of the Cooperative Societies. The Court held that petitioner cannot insist for his continuance in office beyond the period of three years which has expired in January, 1988. When he cannot continue as Chairman of Abu Road Krya Vikray Sahkari Samiti, he cannot continue to represent it in the Sirohi Central Co-operative Bank also to continue as its Chairman. The petitioner was not debarred from contesting elections in future. Repelling the apprehension of the petitioner that on account of his removal and appointment of Administrator, he would be debarred from contesting elections in future was denied by the State. The court upheld the constitutionality of the order inter alia on the ground that impugned order has been applicable only to Krya Vikray Sahkari Samiti whose term of three years has expired and the decision has been taken in order to strengthen the democratic set up of cooperative movement and, therefore, the order does not suffer from any infirmity or illegality.

144. Thus, in the aforesaid situation, even under the existing provisions of the Act of 1965 without the aid of impugned provision, executive action was not found to be in violation of any provision of the Constitution, wherein, existing committee was substituted by an administrator on the expiry of its term.

145. If the executive action in the absence of specific provision was held to be not violative of Article 14 of the Constitution, giving it a statutory shape by making provision for taking over the management of the committee by appointing an administrator in case the new committee is not constituted before expiry of the term of existing committee, and restricting the period during which Administrator can continue until new committee is constituted by holding elections and simultaneously providing for detailed procedure for ensuring that elections are held in time in future also, and removing the apprehension which was sounded in the case of Sultan Singh (supra), that such removal in exercise of power under Section 30(2-B) of the Act, would not result in disqualification of the member from contesting election in future, in terms of Section 28(5) has also been taken care by making a specific provision in that respect.

146. Thus, viewed form any angle, the impugned provision, in our opinion, even without the protection of Article 31A of the Constitution of India, does not suffer from the vice of being inconsistent with any provisions of the Constitution which has been challenged only on the anvil of being violative of Article 14 and 19 of the Constitution of India for not providing a time limit in numerical terms, and does not restrict unreasonably the freedom of cooperative society to carry its trade or business through democratic process.

147. For the reasons stated above, challenge to constitutional validity of Section 3 of Ordinance No. 1 of 2004 and Sub-section (2-B) inserted in Section 30 fail.

CONCLUSIONS:

(1) The legislative power of the State to make or to repeal or to amend an existing law within its legislative field falling within Sub-clause (a) to (e) of Article 31A remain unimpaired by 1st proviso to Article 31A.

(2) The law made by the State in respect of any of the matters falling within Sub-clauses (a) to (e) of Clause (1) of Article 31A, in order to attract immunity from challenge on the ground of being inconsistent with Article 14 or 19 of the Constitution under Article 31A, it must follow the procedure as provided in first proviso to Article 31A.

(3) Non adherence to that procedure would make Article 31A inapplicable to such law. The consequences would be that such law made by the State Legislature without the assent of the President would be vulnerable to challenge on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Article 14 or 19 of the Constitution.

(4) However, where Article 31A is attracted, notwithstanding that the challenger is able to establish that the provisions are inconsistent with or takes away or abridges any of the rights conferred by Articles 14 or 19 of the Constitution still such law cannot be declared to be void because of non obstante nature of Article 31A which makes it prevail over the mandate of Article 13 of the Constitution.

(5) If Article 31A is not applicable, the mandate of Article 13 would prevail while examining the validity of any provision of law falling in the categories including Article 31A and if it is established by the challenger that law under challenge is inconsistent with the provisions of Articles Hand 19 of the Constitution it will be void because of provisions under Article 13 of the Constitution and will not be protected in respect of it because of non-applicability of Article 31A.

(6) The fact that any law, including law framed by State Legislation which does not fulfil the conditions of any of the provisions of Article 31A except of its second proviso, and that it does not have the immunity offered under Article 31A, does not raise any presumption that such law is inconsistent with any provision of Constitution including Article 14 and 19 of the Constitution but will still carry with it presumption in its favour that such law is constitutionally valid, unless otherwise so established by the person who challenge the validity of such law.

(7) Section (3) of Ordinance No. 1 of 2004 which inserts Sub-section (2-B) in Section 30 of the Rajasthan Co-operative Societies Act, 2001 having not been promulgated under instructions from President does not fall within province of Article 31A and, therefore, not protected from challenge on the ground of it being inconsistent with Articles 14 and 19 of the Constitution of India.

(8) Had the impugned provision been enacted by State Legislature it would not have required to be reserved for consideration of President and receive his assent, it was not required of the Governor also that before promulgating Section 3 of Ordinance No. 1 of 2004 to have obtained instruction from President under any of the proviso to Article 213, so the impugned provision is not beyond the authority of the Governor of the State to promulgate the impugned Ordinance under Article 213.

(9) Section 3 of Ordinance No. 1 of 2004 inserting Sub-section (2B) in Section 30 of the Rajasthan Cooperatives Societies Act, 2001 is not inconsistent with any provision of Constitution and is intra vires.

(10) The object of appointment of Administrator under Section 30(2B) of the Act of 2001 is to provide for interim management of the cooperative society after term of existing elected Management Committee has come to an end until new Committee is constituted.

(11) It is inherent in the appointment of an Administrator under Section 30(2B) that the Administrator is required to take steps for securing conduct of elections for constituting new management committee expeditiously.

(12) Guideline for the time limit within which conduct of elections are to be secured for constituting new committee, emanate from Chapter V of the-Rajasthan Co-operative Societies Act, 2001 as substituted by Ordinance No. 1 of 2004 and Administrator appointed under Section 30 (2-B) has to act as Chief Executive of the cooperative society, where Chief Executive Officer is not so appointed under Section 29 of the Act for the purposes of requesting Election Authority to conduct elections of committee immediately on assumption of office and Election Authority has to hold such elections within six months from the receipt of such request from the Administrator or the Chief Executive Officer, as the CASE MAY BE.

(13) If the Administrator and/or Election Authority fail to act in accordance with such obligation, they may be subjected to mandamus to discharge their respective obligations by invoking extra-ordinary jurisdiction of this Court.

148. Accordingly, all these petitions fail and are hereby dismissed.

No order as to costs.


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