Allahabad High Court
Ghanshyam Pandey vs State Of U.P. & 4 Others on 2 December, 2014
Author: Arun Tandon
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 10 Case :- WRIT - C No. - 62349 of 2014 Petitioner :- Ghanshyam Pandey Respondent :- State Of U.P. & 4 Others Counsel for Petitioner :- Pulak Ganguly Counsel for Respondent :- C.S.C.,J.P.Pandey,N.K. Giri,Nripendra Mishra Hon'ble Arun Tandon,J.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the parties.
Amendment application is allowed.
Let the AJPA Parishad Sahkari Samiti Ltd., Ghaziabad through its Secretary be impleaded as respondent no. 6 during the course of the day.
Standing Counsel has accepted notice on behalf of respondent no. 1. Respondents no. 2, 4 and 5 are represented by Shri Priyavrat Tripathi holding brief of Shri Nipendra Mishra, Advocate. Respondent no. 3 is represented by Shri N.K.Giri, Advocate.
It is agreed between the parties that all the three writ petitions may be disposed of at this stage, without calling for any further affidavits, specifically in view of the order proposed to be passed today.
These are three writ petitions filed by individual members of AJPA Parishad Sahkari Awas Samiti, a Cooperative Society duly registered under the Cooperative Societies Act (herein after referred to as the Cooperative Society).
Petitioner before this Court in all the three writ petitions challenge the order made by the Additional Housing Commissioner/Additional Registrar (Housing), Uttar Pradesh Awas Evam Vikas Parishad, Lucknow whereby pending elections of the Committee of Management of the Cooperative Society, Interim Committee of Management have been appointed to manage the affairs of the Cooperative Society. The first order made in that regard is dated 08.09.2014, the second order is dated 10.09.2014 and the third is dated 04.10.2014.
By means of the aforesaid three orders, Interim Committees have been appointed with the change of members of the said Interim Committees. For all other purposes the order remains the same.
The ground for challenge of these orders in all these writ petitions are more or less the same. These petitions have been clubbed together and are being decided by means of this common judgment.
We have heard Shri Shashi Nandan, Senior Advocate assisted by Shri Pulak Ganguly and Shri Ashish Kumar Singh and Shri Vivek Srivastava, Advocates on behalf of the petitioners in all these writ petitions.
We have also heard Shri H.R.Mishra, Senior Advocate assisted by Shri J. P. Pandey, Advocate and the learned Standing Counsel.
The AJPA Society is a Co-operative Society run and managed by a Committee of Management which is to be constituted in accordance with the provisions of the U.P. Cooperative Societies Act, 1965 and the rules and regulations framed thereunder. The last undisputed elections of the office bearers of the Committee of Management had taken place in the month of March, 2010. The term of the elected office bearers admittedly expired on 19.10.2012.
In view of the expiry of the term of the elected Committee of Management of the Cooperative Society, respondent no. 5 in his capacity as the Registrar of the Cooperative Society proceeded to pass an order for holding fresh elections of the Committee of Management in accordance with the provisions applicable. The Additional Registrar further directed that till the fresh elections of the Committee of Management take place, the Cooperative Society shall be run and managed by an interim Committee of Management comprising of the persons named in the order. The order made by the Additional Registrar is dated 20.05.2014 and is subject matter of challenge in Writ Petition No. 51758 of 2014. Because of the order passed by the High Court in the said writ petition, there was a change in the constitution of the interim Committee of Management vide order dated 08.09.2014 which is subject matter of challenge in Writ Petition No. 50236 of 2014. In view of the order passed in the second writ petition, there has been a further change in the constitution of the interim Committee of Management vide order dated 10.09.2014 which has been challenged by means of Writ Petition No. 51758 of 2014 and because of interim order passed in this third petition, another order has been issued altering the interim Committee of Management by the Deputy Registrar (Awas) dated 04.10.2014 which has been subjected to challenge by means of the present Writ Petition No. 62349 of 2014.
On behalf of the petitioners it has been contended before this Court that the power to take over the Committee of Management of a Cooperative Society after its term has expired was conferred upon the Registrar, Cooperative Societies under Section 29 of the Co-operative Societies Act. It is stated that Section 29 has since been amended vide U.P. Act No. 13 of 2013. Under the amended Section 29 of the Cooperative Societies Act, the power to supercede the Committee of Management and for appointing an Administrator/Interim Committee of Management has since been taken away. It is, therefore, submitted that once the statutory power conferred for super-cession of the Committee of Management and for appointment of an interim Committee of Management has been deleted by an Act of legislature the subordinate rule including Rule 438 insofar as it provide for interim Committee of Management being appointed cannot be resorted to for the purposes of achieving what has been done away with by an Act of legislature.
Shri Shashi Nandan submits that no rule can be in conflict with the Legislative Act. The State legislature has decided to withdraw the power of super-cession and appointment of Interim Committee of Management, the respondent authorities cannot fall back upon the Rules which were framed at the time there was an statutory power to supercede the Committee of Management for the purposes of passing the orders impugned.
Counsel for the State respondents including the Standing Counsel could not successfully question the stand so taken on behalf of the respondents. He only submitted that the Court may harmonize the amended Section 29 with the existing Rule 438.
For the purposes of appreciating the controversy, it would be worthwhile to reproduce Section 29, sub-clause 5(a), 5(b), 5(c), 5(e), 6 and 7 as it stood prior to amendment. The Section reads as follows :--
?29.Committee of Management.--(1) The management of every co-operative society shall vest in a Committee of Management constituted in accordance with this Act, the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the bye-laws.
2......
3......
4......
(5) (a) Where, for any reason whatsoever, the election of the elected members of the Committee of Management has not taken place or could not take place before the expiry of the term of the elected members, the Committee of Management shall, notwithstanding anything to the contrary in this Act or the rules, or the bye-laws of the society, cease to exist on the expiry of such terms.
(b) On or as soon as may be after the expiry of such term, the Registrar shall appoint an Administrator or a Committee or Administrator (herein, in this section, referred to as the Committee) for the management of the affairs of the Society until the reconstitution of the Committee of Management in accordance with the provisions of the Act, the rules and the bye-laws of the society, and the Registrar shall have the power to change the Administrator or, as the case may be, any member of the Committee or to appoint a Committee in place of an Administrator or vice versa from time to time.
(c) Where a committee is appointed under clause (b), it shall consist of a Chairman and such other members not exceeding eight as may be nominated by the Registrar, out of which at least two shall be government servants.
(d).......
(e) So long as no administrator or, as the case may be, the Committee is appointed under clause (b), the Secretary or the Managing Director, as the case may be, of the society shall be in charge only of the current duties of the Committee of Management.
6. The Administrator or the Committee appointed under sub-section (5) shall, subject to any directions which the Registrar may from time to time give, have the power to perform all or any of the functions of the Committee of Management or of any officer of the society and shall be deemed for all purposes under this Act, the rules and the bye-laws of the society to be the Committee of Management and the Chairman of such Committee shall exercise the powers and perform the functions of the Chairman of the Committee of Management.
7. The Administrator or the Committee, as the case may be, appointed under sub-section (5), shall as soon as may be, but not later than the expiry of [two years and six months] from the date of appointment, arrange for the reconstitution of the Committee of Management in accordance with the provisions of the Act, the rules and the bye-laws of the society to take over the management of the society from the Administrator or the Committee, as the case may be :
Provide that where an Administrator is replaced by a Committee or a Committee by an Administrator as provide in clause (b) of sub-section (5), the period of [two years and six months] shall count from the date the Administrator or the Committee, as the case may be, was originally appointed.?
It will be seen that earlier there was a power with the Registrar to appoint an Administrator or Committee of Administrator (herein after referred to as the Committee) for the management of the affairs of the Society, once the term of the elected office bearers has expired. The interim committee so appointed would continue to function till fresh office bearers are elected in accordance with the provisions applicable. The Interim Committee of Management/Administrator had to function in conformity with the directions issued by the Registrar from time to time.
The sub-clause 7 contemplated that the Administrator/Interim Committee shall ensure that the elections for reconstitution of the Committee of Management are held in accordance with the bye-laws not latter than expiry of two years and six months.
These statutory provisions quoted herein above have since been deleted from the Statute Book vide U.P. Act No. 13 of 2013 and absolutely new provisions have been substituted.
The amended Section 29 does not contain any provision pari materia to sub-section 5(b), 5(c), sub clause 6 and sub clause 7 as it stood prior to its amendment.
What logically follows from the aforesaid amendments is that there is no cessation of the Committee of Management of a Cooperative Society because of expiry of its term under the statutory provision. The power to appoint an Administrator/interim Committee of Management on expiry of the term of the earlier Committee of Management has since been taken away. The Registrar of the Co-operative Society is left with no such power under the statutory provision of Section 29 as it stands today.
We may also record that for the purposes of holding elections of Committee of Management rules known as U.P. Co-operative Societies Elections Rules, 2014 have been framed. Now there is no power with any Interim Committee of Management to hold elections for Constituting the Committee of Management of a Cooperative Society.
We may take note of Rule 438 of the Cooperative Societies Rules, 1968 which reads as follows :
?Where the Committee of a Cooperative Society ceases to exist or to function or an interlocutory order passed under sub-section (3) of Section 71 or under Section 100 requires an interim arrangement to be made for the management of the affairs of the society, and an Interim Committee in pursuance of the order is appointed by the Registrar, such Interim Committee shall elect a Chairman and Vice-Chairman in accordance with the provisions of Rule 437.?
From a simple reading of the said Rule, it is apparent that if the Committee of Management of the Cooperative Society ceases to exist or to function or an interlocutory order is passed under Section 71(3) or Section 100 of the Cooperative Societies Act, an Interim Committee can be appointed by the Registrar.
The rule, therefore, takes care of the situation where the Committee of Management ceases to exist or to function or when an order under Section 71(3) or under Section 100 requires for an interim arrangement.
Once Sub Section 5(a) of Section 29 which declared that the Committee of Management shall cease to function after expiry of its term itself has been deleted by an Act of legislature, the Registrar cannot resort to Rule 438 to appoint an Interim Committee of Management on the ground that the term of the Committee has expired unless of course there is a provision in the bye-laws of the Society providing for such cessation of the elected office bearers after expiry of their term. It is nobody's case that the bye-laws of the Cooperative Society in question contain any provision for automatic cessation of the Committee of Management after its term has expired.
In the facts and circumstances of the case, there is no order under Section 71(3) or Section 100 requiring an interim arrangement for the management of the Cooperative Society.
We may also record that the Interim Committee as contemplated by Rule 438 will have no power to hold any elections of the Committee of Management as per Rule 438-A in view of Rajya Sahkari Samiti Niyamawali, 2014.
It appears that suitable amendments in Rule 438-A of the Cooperative Societies Act so as to correspond with the amended Section 29 and U.P. State Cooperative Societies Elections Rules, 2014 have not been made.
In the totality of the circumstances on record we find that the order appointing an interim Committee of Management for the petitioner's cooperative society is not in conformity with law. There is no finding in the order impugned that under the bye-laws of the Society, after the expiry of the term for which the Committee of Management has been elected it shall cease to function. Therefore, the essential ingredients contemplated by Rule 438 are not satisfied.
For the aforesaid reasons, the impugned orders cannot be sustained and are hereby quashed.
We make it clear that it shall be open to the Additional Registrar to proceed in the matter strictly in accordance with the provisions applicable.
In order to lay the controversy to rest, we further direct that every attempt shall be made to hold the elections of the Committee of Management as per Rules, 2014 preferably within two months from the date a certified copy of this order is filed before the State Election Commission.
Writ petition is allowed subject to the observations made herein above.
Order Date :- 2.12.2014 VR