Patna High Court
Tardih Prakhand Matasyajivi Swablambi ... vs The State Of Bihar And Ors. on 6 December, 2007
Equivalent citations: 2008(1)BLJR684, AIR 2008 (NOC) 685 (PAT.)
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
ORDER Navaniti Prasad Singh, J.
Page 0684
1. In Heard the parties and with their consent, this writ application is being disposed of at the stage of admission itself. Shri Keshav Shrivastava, learned Senior Counsel appears on behalf of the petitioners and in support of the writ petition and Shri Yogendra Mishra, learned Senior Counsel appears on behalf of contesting respondent No 5, validity of whose registration is under Challenge. State is represented and records have been produced by the State as per previous orders of this Court.
2. Respondent No 5 made an application for registration of Cooperative Society in terms of Bihar Cooperative Societies Act, 1935. The registration application was forwarded and ultimately reached the Registrar, Cooperative Society, who is the competent designated authority in terms of Section 11 of the Act, to register. It appears that the Registrar, who is the statutory authority to register, instead of registering himself, forwarded the same for approval of the State Government presumably in terms of the State Government notification No 45 dated 03.09.1998 (Annexure-4). The Page 0685 State Government then apparently granted approval. The Registrar then sent the application noting Government's approval to the Assistant Registrar, Darbhanga for registration and issuance of registration certificate. Accordingly, respondent No 5 was registered and certificate of registration was issued to him signed by the Assistant Registrar. Neither of the parties have disputed these basic facts.
3. Mr. Keshav Shrivastava, learned Senior Counsel appearing on behalf of petitioners in support of the writ application submits firstly that in terms of the notification referred to above (Annexure-4), the Registrar was required to decide whether it was an exceptional case for being sent to the State Government or not then the State Government had to apply its mind as to whether approval be granted or not and then it was the Registrar who had to register and could not send it to the Assistant Registrar for as per the said very notification. (Annexure-4), the power of Assistant Registrar to register has been withdrawn. These four procedural defects invalidate the registration of respondent No 5. Respondent No 5, thus, should be deemed to be an unregistered Cooperative Society not entitled to any benefits of a registered Society.
4. Shri Yogendra Mishra, learned Senior Counsel appearing on behalf of respondent No 5 submits that his client had done what was required in law to be done. His application duly reached the Registrar. What the Registrar on the office of the Registrar thereafter did is not his concern. He was issued certificate from the office, a fact admitted by all and, therefore, he was bona fide in possession of a registration certificate and, as such, he cannot be held to be in possession of an invalid certificate of registration or a document having no legal effect or sanctity. He submits that even if there was a mistake committed in the office of the Registrar or by the Registrar for that mistake his client cannot be punished or made to suffer because his client had nothing to do with that mistake. Even otherwise, it is submitted that in terms of Section 11(2) of the Act, an application for registration would be deemed to be granted within ninety days if it is neither rejected within the said period nor is there any defect to be cured pointed out within the said period. It is his submission that in the present case the latter two contingencies do not apply as neither has application was rejected nor any defect in it pointed out then even if there was no order by the Registrar granting registration, it would be a registration by default or a deemed registration in terms of Section 11(2) of the Act. On both these counts, the validity of his organization as a registered Cooperative Society cannot be questioned.
5. In order to appreciate the questions involved, first one has to see that there are two cooperative laws obtaining in Bihar. One, the Bihar Cooperative Societies Act, 1935 and the other Bihar Self Supporting Cooperative Societies Act, 1996. Without being exhaustive or elaborate, there are two primal distinctions between the Cooperatives as contemplated under the two Acts. First, under the 1935 Act, a Society may be found with complete interaction with outside persons and to do very many things for profit or otherwise. In the latter that is the 1996 Cooperative Societies Act, it is for self-reliant business enterprises controlled by its members for themselves exclusively. The second difference is that so far as Governmental control is concerned under the 1935 Act, there is extensive Governmental interference in the working of the Society whereas in the 1996 Act as is apparent from the very aims and objects of the act to a very great extant, the Government control is removed and it has its internal controls on which it works. The two Acts lay down conditions requisite for registration. There are different and distinct Registrars under the two Acts to register Cooperative Societies. The process of registration is a process of incorporation of a juridical body for mere association of persons would not Page 0686 make such an association a juridical body. It is the process of incorporation by registration which makes the body a juridical body but no discretion is provided to the Registrar in matters of registration. Both the acts provide that if an application is duly made fulfilling the conditions and the criteria laid down under the Act and the Rules framed thereunder then the Registrar is under an obligation to register. Under both the Acts either prior to or at the stage of registration, State Government has no role to play. Then it would be seen that under both Acts, the State Government has been given power to appoint people to assist Registrars or to delegate power of the Registrar to authorities. On these delegations which have to be done by notification, the Registrar is not denuded of his power but certain other persons in certain contingencies are delegated with additional authority of the Registrar. These delegations, as the power goes, can be made and if so can be withdrawn. It is not that once power is delegated, it remains operative for all times. A person may be empowered to do as a delegate but his power may cease on an appropriate notification being issued where after he will have no authority to act as such.
6. From the aforesaid provisions of the two Acts, it would be seen that a cooperative itself has to decide as to under which Act it has to register. If it decides to register in terms of the 1996 Act then it has to comply with the requirements of 1996 Act. Its membership, its bye laws have to abide by the requirements of that Act. If it seeks registration in terms of the 1935 Act, it has to accordingly satisfy the requirements of 1935 Act. The function of the Registrar under both Acts is only to see that those requirements are complied with and once they are complied with, he has no discretion but to register. This being the legislative scheme, the Executive Government cannot tinker or alter the same or qualify the same by any executive instructions to the contrary. The relevance of this last sentence would be seen if one is to consider the enormous number of circulars by which virtually the Legislative act is being rewritten in the Cooperative Department by the Executive where the procedure prescribed by law is being altered, where conditions being laid down which are not provided by the Legislature for the purposes of registration.
7. Now coming to the all important notification (Annexure-4), as referred to above, the said notification pointed out to be issued in exercise of powers under Section 6(2) of the Act is basically in three parts. In the first part it withdraws the power conferred on various officers to exercise the power and functions of the Registrar under the 1935 Act. One of such officers designated is the Assistant Registrar. Thus, on and from issuance of the said notification, the Assistant Registrar is denuded of his power of Registrar which had earlier been conferred on him. The second part is that in exceptional cases, the Registrar should seek approval of the Government before granting registration to a Cooperative Society under 1935 Act. This I kill deal with it in a greater details at a later stage. The third is inconsequential for the present litigation and deals with the 1996 Act and confers certain powers on officers mentioned therein.
8. So far as the second part of the notification is concerned, the same is wholly unauthorized, without jurisdiction and wrongly issued by the State Government. It has no such power. Firstly, what are exceptional circumstances has neither been defined nor stated but from what was argued at the Bar, it appears that there may be some Cooperative Societies which are basically Societies covered under 1996 Act who seek registration after complying with provisions of 1935 Act. In those matters, the Government thought that it must scrutinize the matter before registration under 1935 Act is granted. The object is laudable but unfortunately there is no statutory sanction for the same. Section 11 of the Act gives unrestricted power on the Registrar to register Society with power under Section 6(2) of the Act on the State Government to delegate the same to Page 0687 others but neither this nor any other provisions of the Act give any authority to the Government to denude the Registrar of his powers to register or make him subservient to the approval to be granted by the State Government. State Government is making an unauthorized intrusion into the field which the Legislature have exclusively carved for the Registrar and that part of the notification is, thus, invalid. The Registrar's power cannot be made subject to approval by the State unless the Legislature say so or the Legislation is so amended. The Stated Government, as a delegate of the Legislature under the Act, has no such authority either to amend the powers of the Registrar or factually amend the Act. That power vests only with the Legislature.
9. In the present case, the Registrar, I am inclined to hold, totally abdicated his authority in the matter and then oblivious of the said notification withdrawing the authority of the Assistant Registrar, having got approval from the State Government, forwarded the same to the Assistant Registrar for issuing the certificate of registration. All this is not what the Act contemplates. This entire exercise was foreign to the scope of the Act. But the question remains what is the consequences thereof so far as respondent No. 5 is concerned.
10. My answer to this is simple. Respondent No 5 did what law enjoined upon him to do. He was ultimately given a certificate of registration issued from the Department of Cooperative. He was not responsible for inducing or guiding into any mistake. He is not concerned with what happened in the Cooperative Department of the State. He is not a party to the same still it is submitted by the petitioner that respondent No. 5 should suffer for the mistake of the State or its officials. I regret my inability to accept the same on two principles. Firstly, it is the doctrine of indoor management which lays down that what is to be done within the four corners of an office with which an outsider has no concern is not the concern of outsider if it is not performed in accordance with rules of the house. In other words, if there is any failure indoor then it would not effect third party rights outdoor. Here, the situation is the same. For failure of the Registrar to perform his statutory function, respondent No 5 is urged to be punished. It cannot be. Secondly, the doctrine of de jure and de facto comes into play as noticed by the Apex Court in the case of Gokaraju Rangaraju v. State of Andhra Pradesh 1981 Supreme Court 1473. There, the Apex Court held that even though the officer exercising the power is bad or incompetent, the office was good and, as such, any action done under the colour of the said office would not stand vitiated. In that case, a person was held to be wrongly appointed as Sessions Judge. The Apex Court held that the judgments rendered by him would not be invalidated merely because he was incompetently appointed. In my view, the case here is similar. An application to the Registrar was made for registration. He considered it and forwarded it to the Stats Government for approval. On getting the approval, he then directed its registration to the Assistant Registrar. The effect would be that wrong person exercised the power all under the directions of the competent person. It is not that the Registrar never applied himself to the matter. It was he who sent it to the Government and it is he who asked the Assistant Registrar to register it. Therefore, the grant of registration was a grant by the Registrar though issued by the Assistant Registrar, there being a distinction between grant and issuance. Grant is the formal act, issuance is the ministerial act.
11. In view of the aforesaid, I have no hesitation to hold that though the registration, as granted to respondent No. 5 may technically be wrong, it is not legally wrong. Respondent No 5 cannot suffer for fault, if any, committed by the statutory functionaries. Thus, the only ground for challenge, the writ application fails and is dismissed accordingly.