Gujarat High Court
Banaskantha District Cooparative Milk ... vs State Of Gujarat & 17 on 3 November, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/14948/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14948 of 2015
With
SPECIAL CIVIL APPLICATION NO. 15660 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BANASKANTHA DISTRICT COOPARATIVE MILK PRODUCERS UNION
LIMITED....Petitioner(s)
Versus
STATE OF GUJARAT & 17....Respondent(s)
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Appearance in Special Civil Application No.14948 of 2015:
MR PS CHAMPANERI, ADVOCATE for the Petitioner(s) No. 1
MR PRAKASH JANI, ADDL ADVOCATE GENERAL with MR NEERAJ ASHAR,
AGP for the Respondent-STATE
MR BS PATEL with MR CHIRAG B PATEL for Respondent No. 7 - 13
Appearance in Special Civil Application No.15660 of 2015:
MR MIHIR J THAKORE, SR ADVOCATE with MR KP CHAMPANERI,
ADVOCATE for the Petitioners
MR PRAKASH JANI, ADDL ADVOCATE GENERAL with MR NEERAJ ASHAR,
AGP for the Respondent-STATE
MR BS PATEL with MR CHIRAG B PATEL for the Respondent Nos.6 to 12
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
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Date : 03/11/2015
COMMON ORAL JUDGMENT
1. In Special Civil Application No.14948 of 2015 (to be referred as 'First Petition'), filed under Article 226 of the Constitution of India, following are the prayers made in para 18:-
"(A) Your Lordship may be pleased to admit the petition.
(B) Your Lordship may be pleased to issue appropriate writ, order or direction to issue appropriate writ, order or direction in the nature of Mandamus or any appropriate writ, order or direction, directing the Respondent-
authorities to draw the Schedule for election of various stages as prescribed under Rule 16 forthwith or within the reasonable time which may be deemed just, proper and fit.
(BB) Your Lordship may be pleased to issue appropriate writ, order or direction in the nature of Mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside impugned order dated 21/09/2015 passed by Res. No.2 herein, produced at ANNEXURE-N. (C) Your Lordship may be pleased to issue interim direction to the Respondent authorities to produce report of steps taken for holding election of the petitioner- Society forthwith or within the reasonable time which may be deemed just, proper and fit, during the pending, hearing and final disposal of this petition.
(D) Your Lordships may be pleased to restrain the respondents- authorities, their agents and servants from appointing the custodian on petitioner- society for non-holding of election by the Respondent no.6- Election Officer till pending hearing and final disposal of the petition.
(DD) In the meantime, this Hon'ble Court be pleased to suspend the implementation, operation and execution of impugned order dated 21/09/2015, passed by Res.No.:2 herein, produced at ANNEXURE-N, till pending Page 2 of 46 HC-NIC Page 2 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT hearing and final disposal of present petition.
(E) ...."
2. In Special Civil Application No.15660 of 2015 (to be referred as 'Second Petition') filed under Article 226 of the Constitution of India, following are the prayers made in para 32:-
"(A) This Hon'ble Court will be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, to quash and set aside the impugned orders dated 21.09.2015 and 24.09.2015- Annexure-O and P respectively passed by the respondent no.2- Registrar, Cooperative Societies.
(B) This Hon'ble Court will be pleased to order to suspend the operation, implementation and execution of the impugned orders dated 21.09.2015 and 24.09.2015-
Annexure-O and P respectively passed by the respondent no.2- Registrar, Cooperative Societies; and further be pleased to direct the respondent authorities to call the general body meeting and to appoint the members to manage the affairs of the Union i.e. the Banaskantha District Cooperative Milk Producers Union Limited to manage its affairs until the election of the members of managing committee of the said Union is held by way of interim direction during the pendency of this petition;
(C) ..."
3. The petitioner of the first petition is specified society. The first petition is preferred initially with the prayers seeking direction to draw Schedule for election of the petitioner Union. However, pending the petition, order dated 21.9.2015 for appointment of custodian in exercise of the powers under Section 74-D of the Gujarat Co- operative Societies Act, 1961 ('the Act') was issued and based on such order, custodian took charge of the petitioner Union. Therefore, second petition is filed by the members of the managing committee of the society challenging the order appointing the custodian. In view of such development, learned advocate Mr. P.S. Champaneri declared before the Court that since the order appointing custodian is Page 3 of 46 HC-NIC Page 3 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT challenged by the petitioners of the second petition, first petition be restricted to the original prayers made in the petition that is to direct the concerned respondents to draw Schedule of every stages for election of the petitioner Union.
4. As the issues concerning the appointment of the custodian and of holding election pertain to same specified society, the petitions are heard and decided together.
5. It would be beneficial to refer relevant provisions of the Act and of the Gujarat Specified Co-operative Societies Election to Committees Rules, 1982 ('the Rules') before the questions raised are examined.
6. Chapter VII of the Act is for management of the societies. Under this Chapter, Section 73 provides for final authority of the society, which reads as under:-
"73. Final authority of society.- Subject to the provisions in this Act and the rules, the final authority of every society shall vest in the general body of members in general meeting, summoned in such a manner as may be specified in the bye-laws:
Provided that, where the bye-laws of a society provide for the election of delegates of such members, the final authority may vest in the delegates of such members elected in the prescribed manner, and assembled in general meeting.
Section 74 of the Act as is existed originally, reads as under:-
"74. Committee, its powers and functions.- The management of every society shall vest in a committee, constituted in accordance with this Act, the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed on it respectively by this Act, the rules and the bye-laws:
Provided that a Committee of a society falling in any of the categories mentioned in sub-section (1) of Section 74-C shall not be so constituted as to require a certain part or number, of its members to periodically retire by rotation and any bye-law Page 4 of 46 HC-NIC Page 4 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT of such society containing such provision shall with effect on and from the commencement of section 2 of the Gujarat Co- operative Societies (Amendment) Act, 1981 (6 of 1981) cease to be in force."
With different amendments till April 2015, Section 74 finally reads as under:-
"74. Committee, its powers and functions.- (1) The management of every society shall vest in a committee, constituted in accordance with this Act, the rules and bye- laws, which shall exercise such powers and perform such duties as may be conferred or imposed on it respectively by this Act, the rules and the bye-laws:
Provided that a Committee of a society falling in any of the categories mentioned in sub-section (1) of Section 74-C shall not be so constituted as to require a certain part or number, of its members to periodically retire by rotation and any bye-law of such society containing such provision shall with effect on and from the commencement of section 2 of the Gujarat Co- operative Societies (Amendment) Act, 1981 (6 of 1981) cease to be in force."
"(1A)(i) Except as otherwise provided herein, the managing committee of a society which is not an apex society, shall consist of, among others, such number of elected members not exceeding twenty-one;
(ii) only the elected members shall be entitled to be the office-
bearers of the managing committee;
(1B)(i) There shall be reserved one seat for the Scheduled Castes or the Scheduled Tribes and two seats for Women in the managing committee of every society consisting of individuals as members and having members from such class or category of persons.
(ii) One seat may be reserved for the persons who are small farmers and marginal farmers.
Explanation.- The expressions "marginal farmer" and "small farmer"
shall have the meanings respectively assigned to them in clauses (g) and (p) of section 2 of the Gujarat Rural Debtors Relief Act, 1976 (President's Act No.35 of 1976) (1C) (i) The term of office of the elected members of the managing committee and its office bearers shall be five years from the date of election:
Provided that the term of office bearers shall be two and a half years from the date of election of managing committee Page 5 of 46 HC-NIC Page 5 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT for the urban co-operative banks and federal societies;
Provided further that the managing committee may fill up a casual vacancy in the committee by nomination out of the same class or categories members in respect of which the casual vacancy has arisen within sixty days from the date of such vacancy, if the remaining term of office of the managing committee is less than half of its original term.
Provided further that the managing committee fill up a casual vacancy in the committee by nomination out of the same class or categories of members in respect of which the casual vacancy has arisen within sixty days from the date of such vacancy, if the remaining term of office of the managing committee is less than half of its original term:
Provided also that in the case of the urban co-operative banks and the federal societies, the managing committee shall fill up a casual vacancy within sixty days from the date of such vacancy, failing which the State Government shall have the power to fill up such casual vacancy out of the same class or categories of members in respect of which the casual vacancy has arise, if the remaining term of office of the managing committee is less than half of its original term.
(ii) The elected members of the managing committee and its office bearers shall cease to hold the office on the date of expiry of their term.
(iii) Notwithstanding anything contained in Clause (I), the office bearers of the urban co-operative banks and federal societies who have completed two and a half years on the date of the commencement of the Gujarat Co-operative Societies (Amendment) Act, 2015 (Guj.12 of 2015), shall continue to be such office bearers for the remainder term.
(iv) The office bearers of the managing committee of the urban co-operative banks and federal societies shall be eligible for re-election.
(1D) (a) The society shall co-opt persons having experience in the field of banking, management, finance or specialisation in any other field relating to the objects and activities undertaken by the society as the members of the managing committee:
Provided that the number of such co-opted members shall not exceed two in addition to the twenty one members as specified in sub-section(1 A).
(b) The co-opted members as aforesaid shall not have the right to vote in any election of the society in their capacity as such members or to be eligible to be elected as office bearers of the Managing Committee.Page 6 of 46
HC-NIC Page 6 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT (1E) In case, where there are functional directors of a society, they shall also be members of the Managing Committee. Such members shall be excluded for the purpose of counting the total number of members of the Managing Committee.
Explanation.- For the purpose of this sub-section, "functional director" means and includes a Managing Director or a Chief Executive Officer by whatever designation called or any ex- officio member or any of the Head of the Department of the concerned society, nominated by the Committee.
(2) There shall be two professionals on the committee of the Central Co-operative Bank and the State Co-operative Bank having qualification prescribed by the Reserve Bank of India or, as the case may be, the National Bank. If such members are not elected on committee of the Central Co-operative Bank and the State Co-operative Bank, the Registrar shall direct the concerned bank to co-opt such professional on the committee within the time limit specified in such direction of the Registrar. If the bank fails to comply with the aforesaid directions, the Registrar shall appoint such professional member on the committee of the concerned bank. The professional member shall have all the rights of members inclusive of voting right and the term of such member shall be co-extensive with the term of other elected members./ Section 74-C till Gujarat No.23 of 1982 read as under:-
74C. Provision for conduct of elections committees and officers of certain societies and term of office of members of committee.-(1) The election of members of the committees and of the officers of the committee, of the societies of the categories mentioned below shall be subject to the provisions of Chapter XI-A and shall be conducted in the manner laid down by or under that Chapter:-
(i) Apex Societies mentioned in the Schedule and such other apex societies as the State Government may, by general or special order, published in the Official Gazette, from time to time specify in this behalf, having regard to financial position and share capital of such societies;
(ii) all District Central Co-operative Banks;
(iii) all Primary Land Development Banks;
(iv)(a) all District Co-operative Sale and Purchase Organizations;
(b) all Taluka Co-operative Sale and Purchase Organizations;
(v) all Co-operative Sugar Factories;
(vi) all Co-operative Spinning Mills;
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(vi-a) all district Co-operative milk unions;
(vi-b) all taluka Co-operative processing societies;
(vii) any other society or class of societies, which the State
Government may, by general or special order published in the Official Gazette, from time to time specify in this behalf, regard being had to the financial position and share capital of such institutions.
(2) When the election of all the members of the committee of any such societies held at the same time, the members elected on the committee at such general election shall hold office for a period of (three years) from the date on which the first meeting is held and shall continue in office until immediately before the first meeting of the members of the new committee.
(3) Notwithstanding anything in the bye-laws of any such society, the committee of management shall be elected by a general body of members of the society and all other committees authorized by or under the bye-laws may be constituted by electing or appointing persons from among the persons who are members of the committee of management, and all such committees shall be sub-
committees of the committee, of management, and shall be subordinate to it:
Provided that it shall be lawful for the State Government.-
(a) to nominate its representatives on a Committee of any such society under section 80, or
(b) to nominate the first Committee of Management of any such society where the bye-laws of such society so provide.
Provided further that it shall be lawful for any body or authority to nominate its representative on a Committee of such society where the bye-laws of such society so provide.
Then in 2013, by Act No.17 of 2013, sub-section (4) was inserted, which reads as under:-
"(4) The election of the Managing Committee shall be conducted before the expiry of its term so as to ensure that the newly elected members of the Managing Committee assumes office immediately on the expiry of the term of office of the members of the outgoing Managing Committee.".
Then by Gujarat Act No.12 of 2015, in Section 74-C for sub-section (2), the following sub-section was substituted:-
Page 8 of 46HC-NIC Page 8 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT "(2)(i) The term of the elected members of the managing committee shall be five years from the date of election:
(ii) The term of office officers of the managing committee shall be two and a half years from the date of election.
(iii) The managing committee shall fill up a casual vacancy within a period of sixty days from the date of such vacancy, failing which the State Government shall have the power to fill up such casual vacancy out of the same class of categories of members in respect of which the casual vacancy has arisen if the remaining term of office of the managing committee is less than half of its original term.
(iv) The elected members of the managing committee and its office bearers shall cease to hold the office on the date of expiry of their term.
(v) Notwithstanding anything contained in clause (ii), the office bearers of the managing committee who have completed two and a half years on the date of the commencement of the Gujarat Co-operative Societies (Amendment) Act, 2015, shall continue to be such office bearers for the remainder term.
(vi) Nothing in Clause (i) shall be applicable to the managing committee existing on the date of coming into force of the Gujarat Co-operative Societies (Amendment) Act, 2015.
(vii) The office bearers of the managing committee shall be eligible for re-election."
Section 74-D, as existed after Gujarat Act No.23 of 1982, read as under:-
74D. Appointment of custodian in certain circumstances.- (1) Where in respect of any society including a society existing immediately before the commencement of the Gujarat Co-operative Societies (Amendment) Ordinance,1982 (1 of 1981) a new committee of management is, for any reason whatsoever, not elected or having been elected not functioning, within a period of six months after the expiry of the term of office of members of a committee of management of such society, (not being a committee referred to section 80A) the Registrar may by an order in writing, appoint a person or a committee of persons to be the custodian of the society until a new committee of management is elected or, as the case may be, starts functioning.
(2) The custodian so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have powers to exercise all or any of the functions of the committee, and take all such actions as may be required in the interest of the society.Page 9 of 46
HC-NIC Page 9 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT (3) All acts done or purported to be done by the custodian during the period when the affairs of the society are carried on by such custodian, shall be binding on the new committee of management.
It was then amended by Gujarat Act No.1 of 2008 so as to read as under:-
74D. Appointment of custodian in certain circumstances.- (1) Where in respect of any society including a society existing immediately before the commencement of the Gujarat Co-operative Societies (Amendment) Ordinance,1982 (1 of 1981) a new committee of management is, for any reason whatsoever, not elected (before) the expiry of the term of office of members of a committee of management of such society, (not being a committee referred to section 80-A) (or having been elected not functioning) the Registrar may by an order in writing, appoint a person or a committee of persons to be the custodian of the society until a new committee of management is elected or, as the case may be, starts functioning.
(1-A) The Registrar shall hold election of such society within a period of two months and the Committee shall be constituted before the expiration of that period.
(2) The custodian so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have powers to exercise all or any of the functions of the committee, and take all such actions as may be required in the interest of the society.
(3) All acts done or purported to be done by the custodian during the period when the affairs of the society are carried on by such custodian, shall be binding on the new committee of management.
However, by Gujarat No.17 of 2013, Section 74-D was deleted. Simultaneously, Section 81 was substituted by following:-
"81. (1) if an in respect of a Managing Committee of a society having the Registrar as its members, the State Government, and in respect of a Managing Committee of a Society which does not have the Registrar as its member, the Registrar, is of the opinion that-
(i) the Committee persistently makes default; or
(ii) the Committee is negligent in the performance of its duties imposed on it by or under this the Act or the rules made thereunder or the bye-laws; or Page 10 of 46 HC-NIC Page 10 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT
(iii) the Committee has committed any act prejudicial to the interest of the society or its members; or
(iv) there is stalemate in the constitution or functions of the committee; or
(v) the authority which is assigned the functions of conducting elections in respect of Managing Committee has failed to conduct elections in accordance with the provisions of this Act, the State Government or, as the case may be, the Registrar, after giving the committee an opportunity of being heard, within fifteen days from the date of issue of notice, by an order in writing, supersede or kept under suspension the committee and appoint -
(a) a Committee, consisting of one or more members of the society, not being the members of the Committee supersede under this sub-section or,
(b) one or more Administrators who need not be members of the society, or from amongst the officers of the Cooperative Department of the State Government, to manage the affairs of the society for a period not exceeding six months Provided that the committee of any such society shall not be superseded or kept under suspension where there is no Government share holding or loan or financial assistance or any guarantee by the Government:
Provided further that in case of a society carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 shall also apply :
Provided also that in case of a society, other than a Multi-State Co-operative Society, carrying on the business of banking, the provisions of this section shall have the effect as if for the words "six months", the words "one year" had been substituted (2) In the case of supersession of a Managing Committee, where an Administrator is appointed to manage the affairs of the society, he shall arrange for conduct of elections within the 'period specified in sub-section(1 ) or sub-section (3) and handover the management to the incoming Managing Committee.
(3) No Committee of a society shall be kept under suspension for a period exceeding six months for the reasons stated in sub-
section(1 ).
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(4) In case where the committee is superseded or kept under
suspension and the committee or Administrator so appointed, shall, subject to the control of the State Government or, as the case may be, the Registrar and to such instructions as he may from time to time give, have powers to exercise all or any of the functions of the committee or of any office of the society and take all such actions as may be required in the interest of the society.
(5) The conditions of service of the Administrator shall be such as may be prescribed by the State Government."
Before substitution by the Act of 2013, Section 81 stood as under:-
81. Suppression of committee.-
(1) If in respect of a committee of a Society having the Registrar as its member, the State Government and in respect of a Committee of a Society which does not have the Registrar as its member, the Registrar, is of the opinion that the Committee-
(a) persistently makes default or, is negligent in the performance of the duties imposed on it by this Act or the rules or the bye-
laws, or does anything which is prejudicial to the interest of the society or its members, then subject to the rules the State Government or, as the case may be the Registrar may, after giving the committee an opportunity of stating its objections, if any, within fifteen days from the date of issue of notice, by order in writing, remove the Committee; and appoint-
(i) a committee, consisting of one or more members of the society, not being the members of the committee removed under this sub-section in its place, or
(ii) one or more administrators from amongst the members of the society, not being the members of the committee removed under this sub-section, or from amongst the officers of the co- operative department of the State Government to manage the affairs of the society for a period not exceeding two years as may be specified in the order, which period may, at the discretion of the Registrar, be extended from time to time, so, however, that the total period does not exceed four years in the aggregate.] (2) The committee or administrator so appointed shall, subject to the control of the Registrar and to such instructions as he may from time to time give, have power to exercise all or any of the functions of the committee or of any officer of the society, and take all such action as may be required in the interests of the society.
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(3) If at any time during any period or extended period [2]
[referred to in sub-section (1)], it appears to the Registrar that it is no longer necessary to continue to carry on the affairs of the society as aforesaid, he may, by an order published in the Official Gazette, direct that the management shall terminate; and on such order being made, the management of the society shall be handed over to a new committee duly constituted.
(4) The committee or administrator shall, at the expiry or termination of its or his term of office, arrange for the constitution of a new committee in accordance with the bye- laws of the society.
[Provided that the committee or the administrator shall make arrangements for constitution of a new committee of a society in the co-operative credit structure within a period of two months from the date of the order of removal of the said committee.] (5) All acts done or purported to be done by the committee, or administrator during the period during which the affairs of the society are carried on by the, committee or administrator appointed under sub-section (1), shall be binding on the new committee.
(6) Before taking any action under sub-section (1) in respect of a society, the Registrar shall consult any co-operative financing institution to which it is indebted.
(7) The remuneration of the administrator appointed under sub-
section (1) shall be such as may be determined by the Registrar and the same shall be paid from the fund of the society.
By Gujarat Act No.12 of 2015, Section 74-D is again inserted with its new version, which reads as under:
"74D. (1) Where in respect of any society including a society existing immediately before the commencement of the Gujarat Co-operative Societies (Amendment) Act, 2015, a new committee of management is, for any reason whatsoever, not elected before the expiry of the term of office of members of a committee of management of such society or having been elected not functioning within a period of three months (not being a committee referred to in section 80A), except for the reason of order of the competent court due to which such election could not be held or the managing committee could not start functioning, the registrar shall by an order in writing, appoint a person or a committee of persons to be the Custodian of the society for a period of one year or until a new committee of management is elected or, as the case may be, Page 13 of 46 HC-NIC Page 13 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT starts functioning.
(2) The Custodian should arrange to hold election of such society within a period of one year and the Committee shall be constituted before the expiration of that period.
(3) The Custodian so appointed shall subject to the control of the Registrar and to such instruction as he may from time to time give, have powers to exercise all or any of the functions of the committee and take all such actions as may be required in the interest of the society.
(4) All acts done or purported to be done by the Custodian during the period when the affairs of the society are carried on by such Custodian, shall be binding on the new committee of management."
Simultaneously, Section 81 was substituted by following:-
"81. (1) If in respect of a committee of society having the Registrar as its member, the State Government and in respect of a committee of a Society which does not have the Registrar as its member, the Registrar, is of the opinion that-
(i) the Committee persistently makes default; or
(ii) the Committee is negligent in the performance of its duties imposed on it by or under this the Act or the rules made thereunder or the bye-laws; or
(iii) the Committee has committed any act prejudicial to the interest of the society or its members; or the State Government or, as the case may be, the Registrar, after giving the committee an opportunity of being heard, within fifteen days from the date of issue of notice by an order in writing, supersede the Committee and appoint-
(a) a Committee, consisting of one or more members of the society, not being the members of the Committee superseded under this sub-section or,
(b) an Administrators from amongst the officers of the Cooperation Department of the State Government, to manage the affairs of the society for a period not exceeding one year as may be specified in the order, which may, at the discretion of the State Government or the Registrar, as the case may be, be extended from time to time, so, however, the term of the Committee or the Administrator shall be, the remaining term of the committee in whose place he is appointed or two years in aggregate, whichever is less.Page 14 of 46
HC-NIC Page 14 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT (2) Before passing an order under sub-section (1), the State Government or the Registrar, as the case may be, shall consult the co-operative financial institution if such society is indebted to it.
(3) The Committee or Administrator so appointed shall, subject to such instructions and control of the State Government or the Registrar, as the case may be, have power to exercise all or any of the functions of the committee or of any officer of the society, and take all such action as may be required in the interests of the society.
(4) The Committee or the Administrator appointed under sub-
section (1) shall arrange to hold the election of the committee of the society at such time as directed by the State Government or the Registrar, as the case may be, but not later than the period as specified in sub-section (1).
Provided that the Committee or the Administrator shall arrange to hold election for constitution of a new committee of a society in the co-operative credit structure within a period of six months from the date of the order of supersession of the said Committee.
(5) All acts done or purported to be done by the Committee or Administrator during the period during which the affairs of the society are carried on by the Committee or Administrator appointed under sub-section (1), shall be binding on the new committee.
(6) The remuneration of members of the Committee or the Administrator appointed under sub-section (1) shall be such as may be prescribed and the same shall be paid from the fund of the society.
(7) The members of the committee which has been superseded under sub-section (1), shall not be eligible to become a member of the committee of the same society for a period of six years from the date of supersession of such committee."
Chapter XIA of the Act is for elections of committees and officers of the societies specified in Section 74-C (specified societies). Under this Chapter, Section 145-C and 145-D read as under:-
145-C.Time when election to be held. Every election shall be held as far as possible one month before the date on which the term of office of the members is due to expire.
145-D.Conduct of elections. (1) Save as otherwise provided, every election shall be held on such date or dates as the Collector may fix, and shall be conducted under his control by such Page 15 of 46 HC-NIC Page 15 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT Returning Officer and other Officers, as may be appointed by the Collector in this behalf.
(2) In all cases, where a society has to send a nominee as a member of the committee of the specified society, the election of such nominee shall be conducted under the control of the Collector of the District in which the registered office of the society sending the nominee is situated.
(3) The voting at every election shall be by secret ballot.
(4) No election shall be held in the case where under the bye-laws of a specified society the Government nominee or the nominee of a Financing Agency becomes a member of the committee of the society.
7. The questions raised by the petitioners are as regards the right of the elected members of the committee of management to continue in the office till new elections are held, as regards appointment of custodian for inaction on the part of the authorities to hold timely elections and as regards right of hearing before exercise of powers under section 74-D of the Act.
8. As stated in para 6 of the second petition, three years term of elected members of the Managing Committee, i.e. of the petitioners, expired on 17.9.2015 as per Section 76-C(2), as existed before the Amendment Act of 2015. As per the amended provisions of subsection (2)(i) of Section 74-C, the term of the elected members, shall be for five years from the date of election. However, as per clause (vi) of amended Sub-section (2), the term of five years is not applicable to the Managing Committee existing on the date of coming into force of the Amendment Act of 2015.
9. Till 17.9.2015, when the term of the elected members, i.e., the petitioners, is stated to have expired on completion of three years from the date of the first meeting of the committee, the election to members of the committees was not held. Therefore, after expiry of the term of the elected members, the Registrar, Co-operative Societies appointed custodian, named Shri S.B. Chauhan, by the impugned order dated 21.9.2015 in exercise of the powers under Page 16 of 46 HC-NIC Page 16 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT Section 74-D of the Act. By subsequent order dated 24.9.2015, Mr. Chauhan was replaced by Mr. Digant Brahmbhatt on the ground that Mr. Chauhan was on sick leave.
10. Learned advocate Mr. P.S. Champaneri for the petitioner of the first petition, submitted that though law mandates for holding of general election of the committee of the specified society by the Collector before expiry of its term, however, for no good reason, the elections are not held till today. Mr. Champaneri took the Court to the provisions of the Act with Rules and also the Constitutional provisions and pointed out that the respondent authorities have failed to discharge their statutory duties and obligations in the matter of holding elections. Mr. Champaneri submitted that though there is no default on the part of the society in initiating the process for election, the Registrar and the other statutory authorities took longtime to start with the election process. Mr. Champaneri submitted that even after delayed initiation of process for holding election, when the voter list was finalised as back as on 7.9.2015, i.e. before expiry of the term of the elected members of the committee, no immediate step to hold the election was taken, though the election was to be conducted within maximum period of 32 days after the voter lists are finalized under the Rules in absence of any restraint order from the Court. Mr. Champaneri submitted that the inaction is deliberate and in utter defiance of the statutory provisions and therefore, this court may direct the respondents to forthwith start further process for election and to hold election within time limit prescribed.
11. Appearing with Mr. K.P. Champaneri for the petitioners in the second petition, learned senior advocate Mr. Mihir J. Thakore submitted that as held by this Court in the case of Amreli District Co- operative Sale & Purchase Union Ltd. & Ors Vs. State of Gujarat reported in 1984(2) GLR 1244, hearing was required to be afforded to the society before the appointment of custodian and since no hearing was given, the order under section 74-D cannot stand scrutiny of law.
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Mr. Thakore submitted that the powers under section 74-D are not absolute, but dependent upon various contingencies to be considered as provided therein and therefore, the legislature appears to have intended to give hearing to the society before exercise of powers under section 74-D of the Act. Mr. Thakore submitted that when no new committee is elected or if elected, not functioning, since the Registrar is to appoint custodian of the society, the society is required to be heard as appointment of the custodian entails civil consequences for the society. Mr. Thakore submitted that though the word, "SHALL" is used for the Registrar to appoint custodian, the law requires the Registrar to meet with the test of Article 14 of the Constitution of India so as not to act arbitrarily and his action since affects the society, Section 74-D can be read down so as to read therein the obligation of hearing to the society before making the order of custodian. Mr. Thakore submitted that such obligation of hearing is otherwise also required to be read into the provisions of section 74-D as general body of the society is the supreme authority, which has power to appoint its own committee under the bye-laws till the elections are held for committee of the management under the Act. Mr. Thakore submitted that this Court, in different petitions, has passed interim orders not to appoint custodian under section 74-D without hearing the society and based on such interim orders, even the State Government has issued circular to hear every society, wherein the custodian is to be appointed under section 74-D of the Act.
12. On the aspect of justification for exercise of powers to appoint custodian, Mr. Thakore submitted that by Section 145-C read with Section 76-C(4), the legislature intended that the elections to managing committee are held before expiry of its term to ensure that only elected body assumes the office immediately, on expiry of the term of the outgoing committees. Mr. Thakore submitted that the Rules for elections to the committee of the society enjoin upon the Page 18 of 46 HC-NIC Page 18 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT State authorities, including the Registrar to start taking steps for holding elections much before expiry of its term. Mr. Thakore submitted that considering the importance of the elections of the specified society, various provisions for taking timely actions are made in the provisions of the Act and Rules and therefore, the State authorities which failed in their duties to hold elections before expiry of term of elected members cannot be permitted to take advantage of their failure and make appointment of custodian. Mr. Thakore submitted that the appointment of custodian in the present case is otherwise also bad in law as new term provided for elected members in Section 74-C(2)(i) is not to apply to the managing committee existing on the date of the Amendment Act of 2015 as per Clause (vi) of sub-section (2) and therefore, the right of elected members existing on the date of Amendment Act of 2015 shall be governed by the old provisions of sub-section (2) as per which the elected members shall continue in office till new elections are held. Mr. Thakore submitted that the old provision of sub-section (2) cannot be read in truncated manner so as to curtail such right to continue in office for the term of three years. Mr. Thakore submitted that if Clause (i) of sub-section (2) is not to apply to the existing committee then its term will continue till the new committee is elected under the Amended Act of 2015.
13. Mr. Thakore submitted that when existing provision is repealed, without any saving clause, Section 6 of the General Clauses Act will apply as per which, the right or privilege accrued under the repealed provision shall continue till the event as provided therein occurs and therefore, till new election is held, existing body shall continue in the office as per the old provision and therefore no action under Section 74-D could have been taken for appointment of custodian especially when election process is already started and as part of such process, lists of voters were also finalised. Mr. Thakore submitted in alternative that even if as per new provision on expiry of the term of Page 19 of 46 HC-NIC Page 19 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT the electd committee, the elected members would cease to hold office, the bye-laws of the society would govern the field to conduct the affairs of the society and if such purposive interpretation is given, it will enhance the democratic principle and expedite the election process. Mr. Thakore submitted that if such purposive interpretation is not given, there will be hietus after expiry of the term if new elections were held for reason of the order of the Court and question may arise as to who will govern the affairs of the society because on one hand, the new election will not be held and on the other hand, the Registrar cannot appoint custodian if there is an order from the Court not to hold election or for the elected body not to function. Mr. Thakore submitted that the society is not responsible to hold election and delay cannot be attributed to society. Mr. Thakore submitted that in the present case, when before expiry of the term of managing committee, the voters lists were finalized, there was no reason not to immediately hold the election. Mr. Thakore submitted that elections were deliberately not held with an intention to appoint custodian which is nothing but abuse of powers and against the democratic values for co-operative principles.
14. As against the above arguments, learned Additional Advocate General Mr. Prakash Jani appearing with learned Assistant Government Pleader Mr. Neeraj Ashar for the State submitted that considering the language of amended provisions of Section 74-D read with Section 74-C(2) of the Act, it appears that the legislature has not intended to afford any hearing to either elected body or the societies before passing the order for appointment of custodian under section 74-D of the Act. Mr. Jani submitted that the decision of the Hon'ble Division Bench in the case of Amreli District Co-op. Sale & Purchase Union Ltd. (supra) on the aspect of affording hearing to the society before appointment of custodian was in the context of the provisions of section 74-D then existed. However, now in new provisions, the obligation of hearing cannot be read before the order of custodian is Page 20 of 46 HC-NIC Page 20 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT made, Mr.Jani submitted that in new provision of Section 74-D, the appointment of custodian is mandated where a new committee of management is, for any reason whatsoever, not elected before expiry of the term of the office of the members of existing committee or if elected, not functioning within the period of three months except for the reason of the order of the competent court and the elected body cannot continue in the office. Mr. Jani submitted that Section 74-C(2) earlier provided for a term of three years for elected members and they were also permitted to continue in the office until the first meeting of the members of the new committee and it was in the context of said provision, the elected body was to be treated in the office and therefore, for appointment of custodian, they could be said to have been affected. Mr. Jani submitted that, now, there is an amendment in Section 74-C(2) and by virtue of such amendment, the elected members of the managing committee and its office bearers shall cease to hold the office on the date of expiry of their term and therefore they will have no right to be heard if custodian is to be appointed under section 74-D after the date of expiry of their term. Mr. Jani submitted that the intention of the legislature could always be gathered from the language used in the provisions made of the Act and from the language of amended provision of Section 74-D read with Section 74-C(2), it could be well said that the legislature wants that whatever may be the reasons for not holding the election of a new committee, elected members of the committee whose term expires, shall have no right to continue in the office and therefore there is no question of affording any opportunity of hearing to the elected committee members. Mr. Jani submitted that there is also no question of giving hearing to the society as law requires appointment of custodian under Section 74-D immediately on expiry of the term of elected body. Mr. Jani thus submitted that considering the intention of the legislature in bringing new provision of Section 74-D and Section 74-C(2), the concept of hearing cannot be read in section 74-D before appointment of custodian as sought to be submitted by learned Page 21 of 46 HC-NIC Page 21 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT senior advocate Mr. Thakore.
15. Mr. Jani submitted that new provision of Section 74-C(2) is in fact at par with the provisions made for elected body of municipality, municipal Corporation and the panchayat as the State and its legislature have decided to go with the concept of five years as the term of the elected body and no more. Mr. Jani submitted that except amended Section 74-C(2)(i) which is not to be applied to the elected committee existing on the date of Amending Act of 2015, all other amended provisions under the Amendment Act of 2015 would apply to all the societies from the date of coming into force the Amendment Act. Mr. Jani submitted that all the clauses of sub-section (2) of Section 74-C as substituted are to be read harmoniously and if so read, it clearly appears that the legislature intended that the existing committee shall not have five years term, but they would cease to hold the office on the date of expiry of three years term. Mr. Jani submitted that Clause (v) is incorporated in sub-section (2) just to ensure that those office bearers, whose term as elected members of the committee was three years under the old provisions and whose term as office bearers as per the amended provision is now two and half years, may not be required to contest election for remainder term, i.e. of six months, and in fact, such provision would suggest that in any case, the elected committee existing on the date of the Amendment Act of 2015, would cease to hold their office on the expiry of the term. Therefore, they have got no right to contend that they shall continue in the office till new committee of the management is elected. Mr. Jani submitted that since the right of elected member to continue only for a period of three years has expired before appointment of the custodian, and since there was no vested right to continue in office, thereafter Section 6 of the General Clauses Act shall have no application. Mr. Jani submitted that once the old provisions are substituted by new provisions, the right of elected members shall be governed by the new provisions and Page 22 of 46 HC-NIC Page 22 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT therefore, the petitioners of the second petition are not entitled to continue in the office and only the custodian will assume office till new elections are held.
16. On the aspect of holding elections before expiry of the term of the elected committee members, Mr. Jani submitted that the default was first on the part of the petitioner society of the first petition in not taking necessary step for election as required under the Rules. Mr. Jani submitted that it was when the Registrar called upon the society to send the requisite particulars, the process was started and thereafter, the concerned authority took necessary steps to finalise voter lists. Mr. Jani submitted that after the voter lists were finalised, further steps in the election process could not be undertaken for the reasons mentioned in the affidavit-in-reply. Mr. Jani submitted that in the present scenario also, as stated in the affidavit-in-reply, at least four months time is still required for completing the election process. Mr. Jani therefore submitted that this court may consider the facts and circumstances as mentioned in the affidavit-in-reply before considering the players made in the first petition.
17. Mr. Jani submitted that reliance placed on the circular is misconceived, inasmuch as the circular nowhere provides for giving of hearing to all societies wherever appointment of custodian is to be made under section 74-D of the Act. In fact, if the circular is closely read, it was put to notice of the concerned authorities to take necessary action in accordance with law as and when appointment of the custodian is required. The circular cannot be read in derogation of the provisions of law for the purpose of hearing before making appointment of the custodian.
18. Mr. Jani submitted that Section 6 of the General Clauses Act will have application only when there is a repeal of the Act. However, when there is a substitution of the existing provision, Section 6 of the General Clauses Act will have no application as repeal and Page 23 of 46 HC-NIC Page 23 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT substitution are not the same. Mr. Jani submitted that in any case, Section 6 of the General Clauses Act will have application only when any right or privilege is accrued to a person by virtue of the provisions in the repealed Act or of the substituted provisions. Mr. Jani submitted that as per the substituted provision of sub-section (2), right of the elected members was only for three years term to continue in the office and further provision made therein to continue till the new body is elected could not be claimed as a matter of right as it was to avoid hietus being created on account of non-holding of the election and it was always permissible for the Registrar to appoint custodian under Section 74-D then existed or to supersede the Committee under then amended provisions of Section 81 of the Act. .
19. Learned advocate Mr. B.S. Patel appearing for the newly added parties submitted that as per substituted provision of Section (2) of Section 74-C, the elected members had right for the term of three years and further continues in the office was by way of grace and not by way of right. Mr. Patel submitted that it is not correct to say that the members elected under the substituted provisions shall have right to continue in office till new election is held even after the amended provisions under the Amendment Act of 2015 are brought into force. Mr. Patel submitted that the appointment of custodian does not entail civil consequences as the legislature intended appointment of custodial to ensure that the elected body may not continue in the office beyond its term Mr. Patel submitted that in earlier provisions of Section 74-D, the Registrar had discretion, not to appoint custodian and when Hon'ble Division Bench of this court considered Section 74-D then existed, the word "AFTER" was used for holding election and not the word "BEFORE" the expiry of the term of the body. Mr. Patel submitted that wherever the legislature has intended giving of hearing, it is specifically so provided like in Sections 13, 17, 36, 76, 81 and 93. Mr. Patel submitted that the present provision of Section 74-D is enacted by way of public policy Page 24 of 46 HC-NIC Page 24 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT as the legislature has found that by not holding election, the elected body would continue far beyond their term. Mr. Patel submitted that when amended provision of Section 74-C(2) mandates cessation of the office on expiry of the term, it has to be read as intended by the legislature and no elected member can claim to continue in the office beyond his term by relying upon the old provisions. On the aspect of inaction in holding election, Mr. Patel supported the stand of the petitioner society for holding the election forthwith.
20. The Court having considered the old provisions of Section 74-D of the Act, the validity of which with other provisions of the Act was examined in the case of Amreli District Co-op. Sale & Purchase Union Ltd. (supra), vis-a-vis the present amended provision of Section 74-D with Section 74-C(2) of the Act, finds that it was in the context of the provision of Section 74-D then existed, the Court in the the case of Amreli District Co-op. Sale & Purchase Union Ltd. (supra) held in para 96 as under:-
"96. Section 74D, as noted above, provides for appointment of a Custodian in certain circumstances. We have reiterated the contention that section 74D is violative of Article 19(10(c) and (g). The challenge to this section on the ground of it being violative of Article 14 is limited, inasmuch as it does not provide for any hearing before the Custodian is appointed. It is challenged as arbitrary. We must read the obligation of hearing a society before the order is made under Section 74D in the amended provisions. The Registrar shall, before appointing a person or a committee of persons, to be custodian of a society, shall given an opportunity of hearing to the society before any order is made. The challenge on the ground of Article 14 must, therefore, be rejected."
It is required to note that the Court in terms rejected the contention that Section 74-D was violative of Article 19(1)(c) and (g) of the Constitution of India. However, the Court read the obligation of hearing a society before an order is made under Section 74-D in the amended provision. But, the challenge on the ground of Article 14 was rejected. As provided in Section 74-D then existed, if a new committee of management is, for any reason whatsoever, not elected Page 25 of 46 HC-NIC Page 25 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT or having been elected, not functioning, within period of six months after expiry of the term of the office of members of the committee of management, the Registrar may appoint a person or a persons of committee to be the custodian until new committee of management is elected to start functioning. Thus, even after the term of the committee would expire, six months time was available to the committee to continue in the office and during which period if election is not held, discretion was available to the Registrar to appoint custodian and if such discretion is not exercised, no hietus will be created on account of the provisions made in Section 76-C(2) under which the Committee would continue in the office till new election is held. In such nature of provisions of Section 74-D, then existed, the Court in the case of Amreli District Co-op. Sale & Purchase Union Ltd. (supra) read the obligation of hearing before making appointment of custodian. In the year 2008, the provision as regards waiting period of six months after expiry of the term of the office of members of the committee was done away with. However, no change was made as regards exercise of the discretion by the Registrar for appointment of custodian by continuing the word "MAY" used in Section 74-D after the words, "THE REGISTRAR". Now, in the amended provisions of Section 74-D, word, "SHALL" is used for the Registrar to exercise the powers for appointment of custodian. The reasons/ grounds for such exercise of powers are the same in the present amended provisions of Section 74-D as were there in Section 74-D when amended by Gujarat Act No.1 of 2008 except for holding of no election for new committee or non-functioning of the new elected committee for reason of the Court's order. The phrase, "FOR ANY REASON WHATSOEVER" found place in the original provision of Section 74-D, has continued in the amended provision of Section 74-D in the year 2008 and in the present amended provision. The Registrar was not required to consider the reasons for exercise of the powers for appointment of custodian either under the old provisions or under the amended provisions to find out why new committee of Page 26 of 46 HC-NIC Page 26 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT management was not elected or was not functioning. However, the discretion was with the Registrar not to appoint the custodian in unamended provision of Section 74-D of the Act and by virtue of the substituted sub-section (2) of Section 74-C, the elected body would continue in the office till new election is held. But, now, it appears that the legislature clearly intended not to allow the elected members to continue in the office beyond their term and therefore, it wants the Registrar to immediately take over the management of the society through the custodian on expiry of the term of the elected members of the committee if new committee is not elected before expiry of such term or not functioning for 3 months. Therefore, while re- introducing Section 74-D with its new version by Amendment Act of 2015, sub-section (2) of Section 74-C is also substituted by making specific provision in Clause (iv) thereof that elected members of the managing committee and its office bearers shall cease to hold office on the date of expiry of their term. By such simultaneous amendment in sub-section (2) of Section 74-C, the legislature has made its intention more clear that it does not want any elected members to continue in the office beyond their term. If such is the intention of the legislature and if the legislature wants that the Registrar shall appoint custodian, if a new committee of management, for any reason whatsoever, is not elected before expiry of the term of the office of members of the committee of the management of the society or that such committee having been held, not functioning, it is not possible to read the obligation of affording hearing in the present provisions of Section 74-D before the order for appointment of custodian is made by the Registrar as reading of such obligation may render the intention of the legislature frustrated. There is one more reason to come to such conclusion. By Gujarat Act No.17 of 2013, Section 74-D was deleted and in Section 81, non-holding of election was added as one more ground for super-session of the committee of management. In Section 81, express provision is made for hearing. However, when the provision of Section 81 is further amended by Amendment Act of Page 27 of 46 HC-NIC Page 27 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT 2015, so as to remove the ground of non-holding of election of the Committee of management and with such ground, again when the provision of Section 74-D with its new version was re-introduced, the legislature has not thought it fit to carry obligation of hearing existed in Section 81 for super-session on the ground of non-holding of the election of the committee in present provisions of Section 74-D. If the legislature intended hearing to be given before making the order of custodian under Section 74-D, the provision for hearing would have been incorporated in Section 74-D. The legislature, when by one amendment Act provided for two different kinds of amendments, was fully aware about the provision of hearing which was made in Section 81 and still not made such provision in Section 74-D, which would go to suggest that it clearly intended not to provide hearing either to the committee members or to the society before making the order of custodian.
21. Mr. Thakore, however, submitted that the action under Section 74-D of appointment of custodian entails civil consequences for the society and directly affects the society. Therefore, on expiry of the term of the committee, if committee members are not given hearing, the society is required to be given hearing as the Registrar is required to consider different contingencies before making the order of appointment of custodian. The Court, however, finds that the society and its committee members are not independent to each other. The society and its committee would go together. The society is a person de jure and cannot function in absence of a body of individuals or without an individual, who can manage the affairs of the society. It could be a committee of members or a person appointed to function for the society. Therefore, it is no ground to say that though the committee whose term expires, would not be entitled to hearing but the society in respect of which the custodian is being appointed is required to be heard. If the legislature does not intend to give hearing before making the order of appointment of custodian by the Page 28 of 46 HC-NIC Page 28 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT Registrar, obligation of hearing cannot be separately read for the society.
22. Mr. Thakore however would rely on the interim order of this Court dated 27.4.2015 passed in Special Civil Application No.7320 of 2015, whereby the Court has directed that appointment of custodian for the petitioner society therein shall not be made without giving opportunity of hearing to the society and further directed that the members of the Managing Committee shall not be entitled to function on expiry of their term, however, the power will remain with the General Body and it was left open to the Manager/ Chief Officer-Main Officer of the society to convene the meeting of the General Body to depute three members of the society to look after the affairs of the society in absence of the Managing Committee until new election is held and newly elected Managing Committee takes over the office. However, Mr. Jani pointed out that the above interim order was based on the order dated 23/24.4.2015 passed in Letters Patent Appeal No.831 of 2015, but when order passed in Letters Patent Appeal was challenged before Hon'ble Supreme Court in S.L.P. No.13829 of 2015, Hon'ble supreme Court has ordered that the custodian appointed shall continue. Such order is in operation as on today and the matter is under consideration before Hon'ble Supreme Court.
23. Thus, when Hon'ble Supreme Court has allowed the custodian appointed to continue in the matter of challenge to the order passed in Letters Patent Appeal No.831 of 2015, the interim order relied by Mr. Thakore could not be taken as conclusive one on the aspect of hearing. It is well settled law that interim order is not the precedent or the law laid down by Court of law. The Court on analysing the unamended and amended provisions of Sections 74-C(2), 74-D and 81 of the Act finds that obligation to hear the society before making the order of custodian cannot be read in Section 74-D of the Act. Therefore, the contention that the impugned order appointing custodian is illegal as passed without hearing the society cannot be Page 29 of 46 HC-NIC Page 29 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT accepted. In such view of the matter, the circular issued by the State Government based on the interim order would be of no help to the petitioners on the question of hearing to be afforded before passing the order for appointment of custodian.
24. However, the question may arise, as submitted by Mr. Thakore, that what happens if election is not held or if elected body does not function for 3 months for reason of the Court's order. Mr. Thakore submitted that in such situation, there will be hietus and the society will be left with no managers and therefore, in order to meet with such hietus, the society with whom final authority vests as per Section 73 of the Act could be permitted through its general body members to provide for committee to manage its affairs till new committee of management is elected and even for such purpose, the society is to be given opportunity of hearing.
25. The Court, however, finds that by the exception provided in Section 74-D for which new committee is not elected or not functioning, the Registrar may not be compulsorily required to appoint the custodian on expiry of the term of the elected members of the committee. However, he is not divested of his powers to exercise his discretion in such circumstances and to avoid hietus being created, he can certainly appoint custodian and provide for taking of action to hold election to elect new committee of members within a reasonable time.
26. Then comes the aspect as to whether the authorities who are otherwise under the statutory obligation to timely conduct the election of the specified society and having failed to discharge such obligation by not holding election till expiry of the term of the committee members, could be permitted to take advantage of their failure. Mr. Thakore submitted that as required by Section 145-C and as per Section 74-C(4) of the Act, elections to the committee of management are required to be conducted before expiry of the term Page 30 of 46 HC-NIC Page 30 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT of the committees and to comply with such statutory requirements, 1982 Rules for election to committees of the specified societies require time schedule provided in different rules to be adhered to for holding election. Mr. Thakore submitted that considering such statutory provisions for holding election before expiry of the term of the elected member, the Registrar was not justified in passing the impugned order of appointment of custodian on the ground that the elections are not held before expiry of the term of the committee. Mr. Thakore, relied on the judgment in the case of M. Ranga Reddy Vs. State of Andhra Pradesh and Another reported in AIR 1989 Andhra Pradesh 81, especially para 11 to 13, which read as under:-
11. From the narration of facts given above, the following facts are evident :
i) The Government violated the spirit and scheme of the Act by not holding elections on the expiry of the terms of the committeesin Sept./Oct. 1984. (The societies or their committees cannot hold elections themselves; they have to be notified and held by the designated officers). It is not shown that if the elections had been held as contemplated by the Act, it would have prevented the introduction of single-window system. The term of the elected committees could have been cut short and new elections notified, at any time, by amending the Act and/or the Rules, as the case may be. If indeed the elections had been held, the elected committees would have by now completed their term of three years, except for about 3 to 4 months.
ii) Government's antipathy towards the elected committees :
Having not held the elections and having thereby acted contrary to the spirit and scheme of the Act, the Government has been taking several steps for sending the elected committees out of office, so as to enable it to appoint petty officers belonging not only to co-operative Department but to other departments as well, as official persons in charge of these societies. These persons in charge have continued for years together, which is again a violation of the spirit, and scheme of the Act, and beyond the contemplation and conceptual confines of cl.(7) of S.32 of the Act.
iii) Violation of Legislative command :
Ordinances 4 and 5 of 1985 enacted Amendment Act 21 of 1985,, directed that the elections shall be held on or before 22-10-1985. This was an amendment introduced by the Government itself. This legislative command was simply Page 31 of 46 HC-NIC Page 31 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT ignored. By virtue of the 1987 Amendment Act, passed in Jan. 1987, the Government got the said time limit extended up to the end of June, 1987.
iv) Government's disobedience and disregard to the directions of this court issued under Art.226 of the Constitution and violation of solemn assurances given to this Court :
This is too self-evident and needs no repetition. The last direction was to hold and complete the elections on or before Jan. 26, 1987, which was modified to say that the election process should start as soon as the N.G.Os.' strike is over. But the time schedule already fixed was directed to be adhered to. The Government just ignored these directions. It did not choose to apply for extension of time ; it never thought it, fit to tell this court that the Legislature has passed the 1987 Amendment Act; that for certain reasons, if any, elections cannot be held as directed by this Court, and that, therefore, time should be extended. Evidently thinking that S.12 of the 1987 Amendment Act provides a protective umbrella to it, the Government simply ignored the orders of this Court, if indeed the 1987. Amendment Act had provided that elections can be held before the end of Dec. 1987, the Government would have evidently thought it can conduct the elections by Dec. 1987, notwithstanding the several orders of this Court.
12. The above situation brings to our mind what Justice Brandies of United States Supreme Court said way back in 1928.
He said :"In a Government of laws, existence of the. Government will be imperilled if it fails to observe the law scrupulously if the Government becomes a law-breaker, it breeds contempt for law : it invites every man to become a law unto himself ; it invites anarchy. We can do no more than repeat these words and stress their significance. If the Government itself violates the law, if it violates the orders of the Court with what grace can it ask the citizens to have respect for law? The consequences of such violation may not be immediately apparent; the Governments may get away with such viloations and may gain their short-term political objections; but in the long term they debilitate and destroy the constitutional system, by enervating the rule of law. Theexplanation that all this was done out of a concern for introducing "Single-window System" falls flat in the circumstances of the case and for the reasons mentioned above.This laudable objective single window system could also have been achieved in our opinion without violating the law and the orders of this court.
13. The learned Advocate-General conceded that the spirit and scheme of the Act requires elections to be held before the term of the incumbent committee expires. He agreed that appointing the official persons in charge and keeping them in office for long periods as a general rule is equally contrary to Page 32 of 46 HC-NIC Page 32 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT the spirit and scheme of the Act.We are saying this because on earlier occasions the Government and its advocates have been arguing which argument has sometimes found acceptance with one or the other Judges of this. Court that once the term of an elected committee is over, it has no right to continue in office, and that it is perfectly legitimate for the Registrar to appoint such persons as he thinks appropriate as persons in charge. Such an argument, we must say, adopts a wholly untenable and unjustifiable approach.The angle from which the matter should be approached is not whether the elected committee has a right to continue in office beyond its term. The proper approach is whether it is permissible for the Government not to hold elections and appoint persons in charge for long periods.We are told that because the officials of the Co-operative Dept. were not sufficient, the officials of other departments were also indented for to act as, parsons in charge of thousands of co-operative societies. Such postponement of elections is itself contrary to the scheme of the Act. The appointment of persons in charge provided by S.32(7) was conceived to meet a limited situation; it was never intended as a substitute for elected committees. Further,whenever elections are postponed for unavoidable reasons, the elected committee should be continued in office (if necessary, by recording reasons therefor) provided the committee is not guilty of an irregularities or other malpractice. Only where the committee is guilty of irregularities and/or malpractice would it be not in the interest of the society to continue such committee. The interest of the society demands that an elected committee should manage its affairs rather than a puisne officer of the Co-operative Department nominated by the Registrar. The basic idea underlying a co-operative society is that the members should themselves manage their own affairs an improve their economic lot in such manner as they think appropriate subject, of course, to the relevant laws. An official person charge is the last person to be contemplated for achieving the said purpose.We hope and trust that the Government shall not hereafter contend that once the term is over, the elected committee, even if it is not guilty of any irregularities and/or malpractices, has no right to continue in office and that they can appoint any one they like as person in charge.Indeed, this is the principle affirmed by a Full Bench of this Court in M. Gidda Reddy v. Deputy Registrar, Kurnool AIR 1977 Andh Pra 274 (FB).
Mr. Thakore also relied judgment in the case of Rajendra prasad Yadav and others Vs. State of Madhya Pradesh and others reported in AIR 1997 SC 3723, especially para 59, which reads as under:-
59. Moreover, under the bye-laws of the Apex Bank, there is no obligation or duty cast on it to have the elections to the managing committee or representation of the Central Bank or Apex Co-operative Society conducted. It is the power, the Page 33 of 46 HC-NIC Page 33 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT function and duty under the Act of the Registrar, on a request made by the respective committees of the Central Banks or Apex Co-operative Society concerned to conduct elections.
Under these circumstances, it is difficult to give acceptance to the contention of the respondents that on expiry of the term of the President, two Vice-Presidents of the Board of Directors and the term of the managing committee which being co- terminus with the Board of Directors must be deemed to have vacated their offices. Thereby the Registrar is not entitled to assume office of the Board of the Directors and the managing committee. It is also difficult to visualise that President, two Vice-Presidents, the Board of Directors and the managing committee of Apex Bank should be saddled with the liability to vacate the office, on expiry of the term for non-conducting elections thereof, when they have no statutory obligation to ensure conduct of elections to Primary Societies and Central Banks. The Registrar does not in the above situation get the power to assume office as per the statutory obligation. One important fact to be noted is that the bye-laws of the Apex Bank ensure that the Board of Directors and the members of the managing committee elect the President and Vice- President and remain in office till their respective successors assume office. Thereby there would be no hiatus created in the management of the affairs of the Apex Bank in accordance with law, nor their actions in the management of the Apex bank would be illegal.The admission of the State Government in the counter affidavit that elections were not conducted to the Central Banks by or before the date of the expiry of the term of the office of the Board of Directors and the managing committee of the Apex Bank, pre-empts the Registrar to resume management of the Board of Director of the apex Bank and its managing committee.
The Court, finds that the above-judgments, shall have no application to the case on hand wherein the questions being decided are on different provisions of the Act.
27. Reading Section 74-D with Section 74-C(2) of the Act, what emerges is that since the elected members would cease to hold their office on expiry of the term, on non-availability of newly elected committee or if available but non-functioning, the Registrar will be required to appoint custodian. Therefore, even if there are lapses on the part of the statutory authorities to hold election before expiry of the term of the existing elected body, such would not be a ground for the Registrar not to appoint the custodian and if in this context, phrase "for any reason whatsoever" employed in Section 74-D are Page 34 of 46 HC-NIC Page 34 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT seen, the Registrar is not concerned with the reason for not holding election for the new committee. Mr. Thakore pointed out that much before expiry of the term of the elected members, process of holding election process had begun and even the stage for finalising voter list was over on 7.9.2015 leaving sufficient time of at least more than 10 days before expiry of the term of the elected body to take further steps for holding election however with clear intention to appoint custodian, the term was allowed to expire and even now as per the affidavit, further four months time is sought by the concerned authorities to complete the process of election. Mr. Thakore submitted that such conduct on the part of the statutory authorities would depict that in the facts of the case, powers under Section 74-D are abused just to oust the elected members and not to permit the society to function through its members. However, such lapses either deliberate or otherwise for not holding election within a reasonable time could be considered for issuing necessary directions to hold election within the specified time limit but, the same cannot be considered to hold that appointment of the custodian under Section 74-D of the Act is illegal.
28. Mr. Thakore then submitted that the term of the existing elected members had not expired on the date of coming into force of the Amendment Act of 2015, i.e. 10.4.2015, and if Clause (i) of sub- section (2) of Section 74-C of the amended provision is not to apply to the managing committee existing on the date of coming into force of the Amendment Act of 2015, their term shall be governed by the provisions then existed and as per the provisions of Section 74-C(2), then existed (substituted provision), the elected members shall continue in the office even after expiry of the term of three years till new management committee is elected and since new management committee is not elected, the existing elected committee shall continue and no order for appointment of custodian could be made under Section 74-D to replace such existing elected committee till Page 35 of 46 HC-NIC Page 35 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT new committee is elected. The Court, however, finds that in view of the provision of sub-section (2) of Section 74-C, as per the Amendment Act of 2015, elected members of the managing committee shall cease to hold the office on the date of expiry of their terms. New provisions have come into force on 10.4.2015. By Clause No.(vi) in sub-section (2) of Section 74-C in the new provisions, the legislature intended that the existing committee shall not have five years term. Such intention could be read from Clause No.(v) thereof, which provides for continuance of the office bearers, who have completed two and half years of term, for remainder term. It is required to note that under the bye-laws, the term of the office bearers was three years. As per new provision, term of the office bearers is of two and half years. The legislature, therefore, was conscious that on coming into force of the amended provision of Section (2) of Section 74-C, the term of three years which was otherwise available to the office bearers would stand curtailed to two and half years. Whereas, elected members shall continue for three complete years and therefore, to meet with such situation and to ensure that the office bearers may not be required to get elected for remainder term of only six months, such special provision appears to have been to continue office bearers for the remainder term. Such would give clear idea that in no circumstances, the legislature wants that the existing elected body should continue in the office beyond its term and therefore, it is provided that the elected members of the managing committee as also the office bearers shall cease to hold office on the date of expiry of their term. Therefore, the contention that new provisions shall not apply to the existing body and existing elected body shall continue in the office even beyond the period of three years cannot be accepted. Mr. Thakore, however, pressed into service Section 6 of the General Clauses Act so as to contend that when there is no specific saving provision made by the repealing Act for any right, privilege accrued or any action taken under the Repealed Act to continue then as per the provisions of Section 6 of Page 36 of 46 HC-NIC Page 36 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT the General Clauses Act, the right or privilege accrued under the repealed provision or substituted provision shall continue till new provision concerning such right or privilege is acted upon. In support of such contention, Mr. Thakore has relied on the decision in the case of State of Punjab Vs. Mohar Singh Pratap Singh reported in AIR 1955 SC 84, espcially the observations made in para 7,8 and 9; then decision in the case of State of Kerala and others Vs. Mar Appraem Kuri Company Limited and Another reported in (2012)7 SCC 106, especially para 92 and 97 thereof. On such aspect, he has also relied on other judgments. He also relied on the judgment in the case of Commissioner of Income-tax, U.P. Vs. M/s. Shah Sadiq and Sons reported in AIR 1987 SC 1217.
29. It is true that as laid down in the above-said judgments, in absence of any saving provision in the repealing Act, the benefit of Section 6 of the General Clauses Act could be made available but only when some right or privilege is found to have accrued in favour of the person claiming such benefit of Section 6 of the General Clauses Act. But, if no right or privilege is found to have accrued, there is no question of applicability of Section 6 of the General Clauses Act or that rights or privileges claimed to have accrued under the repealed provision are specifically taken away or abrogated in its entirety, no benefit could be claimed on the basis of Section 6 of the General Clauses Act. In above context, if the case on hand is examined, the term for elected members under the substituted provision of Section 74-C(2) was of three years. Such term expired on 17.9.2015. Therefore, right of the elected members was to continue for a period of three years and there was no privilege conferred upon the elected members under the substituted provisions. Such right stood extinguished on expiry of the period of three years, i.e. on expiry of the term of the elected members. Further period provided in the substituted provisions of sub-section (2) to continue in the office till new election is held, was to ensure that no hietus is created but not Page 37 of 46 HC-NIC Page 37 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT as a matter of right. A right or privilege is always in exact and certain terms and not with any uncertainty. Further period as provided in the substituted provision of sub-section (2) could be curtailed at any time either on holding of new election or on Registrar exercising of his discretion of appointing custodian. It was, therefore, not a right of the elected members under the substituted provision of Sub-section (2) to continue beyond the period of three years. In such view of the matter, the contention raised by Mr. Thakore that by virtue of the provisions of Section 6 of the General Clauses Act, elected members existed on coming into force of the Amendment Act of 2015 shall continue in office till new election is held cannot be accepted.
30. In the case of K.B. Nagur, M.D. (Ayurvedic) Vs. Union of India reported in (2012)4 SCC 483, Hon'ble Supreme Court while examining the validity of Section 7 of the Indian Medicine Central Council Act, 1970, on interpretation and examination of the provisions of the Statute, has held and observed in para 5 to 25 and 32 as under:-
5. This elected Central Council, so constituted, is to discharge various functions and duties as contemplated under the provisions of the Act, which include the grant of recognition to medical colleges/courses, maintenance of education standards, appointment of Inspectors, conduct and supervision of examinations, and even the withdrawal of recognition, if necessary. A register is to be maintained of the persons possessing requisite qualification in the type of medicine which the member is eligible to practice and who have been registered by the State Board and which register has to be updated with regard to the qualification attained by members of the respective professions subsequently.
6. As is evident from the above narrated provisions, the Central Council discharges very significant and important functions which would affect not only education in these three systems but even their practice and treatment of thousands of patients under these systems. The statute places an obligation upon the Central Government to hold these elections and ensure that the Central Council works smoothly and in accordance with the provisions of the Act.
7. Section 7 of the Act refers to the tenure that an elected member is entitled to enjoy, upon his election to the Central Council. This Section deals with the term of the Office of the President, Vice-President and the members of the Central Council. The term of office for all these persons is five years Page 38 of 46 HC-NIC Page 38 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT from the date of election or nomination, as the case may be, or until a successor has been duly elected or nominated, whichever is longer. The latter part of this Section caused serious impediment in the proper functioning of the Central Council primarily for two reasons : (a) the Central Government did not take appropriate steps to hold fresh elections and (b) the persons who were elected and were interested in continuing as such, took advantage of this provision and continued in office far beyond five years as nobody was duly elected to replace them.
8. The petitioner is an Ayurvedic doctor and holds the degree of Ayurvedic Medicine, namely BAMS, has done his post graduation MD (Ayurvedic) degree subsequently. The petitioner claims that he held and still holds various offices in different organizations dealing with Ayurveda system of medicine. He claims to be the General Secretary of the Medical Association of India and member of the Governing Body of All India Ayurvedic Congress Committee, New Delhi and Indian Association of Blood Bank, Delhi. His aim is to ensure proper functioning of the Central Council, which has not been properly constituted and for which elections have not been held for the last 20-25 years.
9. The petitioner, having failed to achieve any results at the hands of the Central Government or the Central Council, despite the fact that he was holding various offices directly connected with the functioning of the Central Council, filed a petition under Article 32 of the Constitution of India, 1950 (hereafter, 'the Constitution') with the following prayers :
"(a) An appropriate writ, order or direction directing the Union of India to hold elections to the Central Council of Indian Medicines and to constitute the same in accordance with law;
(b) Further direct the Union of India to fill up the posts of any member who has completed five years within one month;
(c) Strike down and quash the last clause in section 7 of Indian Medicine Central Council Act, 1970 reading as "or until his successor shall have been duly elected or nominated, whichever is longer" as contrary to the very Act, unconstitutional and undemocratic and violative of Articles 14 and 16 of the Constitution of India."
Obvious from the above prayers is that the petitioner, firstly, wants a direction to the Union of India to discharge its statutory duty in terms of Section 3 of the Act, to fill up the membership of the Governing Body of the Central Council with regard to the members who have completed the term of five years within the stipulated period and secondly, the striking down of provision of Section 7 of the Act as unconstitutional, undemocratic and violative of Articles 14 and 16 of the Constitution.
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10. It is the contention of the petitioner that the elected members of the Central Council are adopting delaying tactics and even invoking the jurisdiction of the High Courts to stop the holding of elections or the declaration of result of the elections wherever held, notwithstanding the fact that there is an alternative remedy available to them of filing an election petition. The inaction on the part of the Government borders on complicity and with the passage of time vested interests have developed. There is a specific averment in the petition that the Union of India and even the members of the Central Council are not evincing any interest in the functioning of the Central Council and a few unelected members, whose term expired long back, are squatting for an inordinately long period as being erstwhile elected members of the Central Council with the aid of language of Section 7 of the Act.
11. To contend that the delay is prejudicial to the working of the Central Council and is also opposed to the spirit of Section 3 of the Act, they rely on the decision of this Court in the case of Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others ((2006) 8 SCC 352 : (AIR 2007 SC 269 : 2006 AIR SCW 6044)), which held that the Election Commission should take steps by following due process of law, but that too should be done in a timely manner and in no circumstances, shall such elections be delayed, so as to cause gross violation of mandatory provisions contained in Articles 243-U of the Constitution. This buttresses their submission that timeliness in conduct of elections is mandatory.
12. Lastly, challenge has been raised to the following portion of Section 7 of the Act as unconstitutional, violative of Articles 14 and 16 of the Constitution:
"7. Term of office of President, Vice-President and members of Central Counci.- (1)....or until his successor shall have been duly elected or nominated, whichever is longer"
13. First and foremost, we will deal with the contention of the provision being ultra vires of Articles 14 and 16 of the Constitution of India, raised on behalf of the petitioner.
14. Article 14 guarantees equality before law whereas Article 16 talks of equal opportunities in matters of public employment. This concept of equality has to be patently infringed by a provision before that provision or any part thereof, can be declared as unconstitutional.The mere fact that there is some inconvenience arising from the language of a provision and its due implementation, cannot be a ground for declaring a provision violative of fundamental rights.
15. The impugned part of Section 7 of the Act is intended to ensure that there is no vacuum in the membership of the Central Council.The term, as prescribed under Section 7 of the Page 40 of 46 HC-NIC Page 40 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT Act, is five years. Elections are expected to be held within that period of five years to ensure that immediately after expiry of the specific term, the members holding the office quit and the newly elected members assume the charge. However, there can be situations where the elections in the entire country or in any part thereof cannot be held within the prescribed time and for valid reasons. It may even be because of the situation that is created by the people who are holding the office of the members of the Central Council for their personal ends. In such cases also, the elections may be delayed.
16. It is the former situation which is intended to be protected by the challenged words of Section 7 of the Act. The legislative intent is clear that there cannot be a vacuum in the working of a statutory body and it cannot be rendered non-existent even for a short period by lapse of membership term or otherwise.Thus, to provide a safeguard for the interregnum period, of the earlier members of the Central Council vacating their office and newly elected members assuming their office, the provisions of Section 7 have been enacted by the Legislature.
17. Still another aspect is that presumption of constitutionality is always in favour of a legislation, unless the contrary is shown. Furthermore, a Legislature, in enacting a law, operates on a presumption, in law and practice, both, that all other forums and entities constituted under one or other Act would, in their functioning, act in accordance with law and expeditiously. As it is a settled precept in the application of economic principles, that all other things will remain the same i.e., ceteris paribus, similarly, for the proper interpretation and examination of a provision of a statute, all bodies must be presumed to act effectively and in accordance with law.
18. A statute is construed so as to make it effective and operative as per the principle expressed in ut res valeat potius quam pereat . There is, therefore, a presumption that the Legislature does not exceed its jurisdiction and the burden of establishing that the Act is not within the competence of Legislature or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vagaries.
19. Here, we may also notice that there are two rules, of most general application, in construing a written instrument which are pari materia, applicable to statutes as well. First, if possible, the written instrument shall be interpreted in light of the above mechanism and secondly, such a meaning shall be given to it, as may carry out and effectuate, to the fullest extent, the intention of the parties or the framers of law. Of course, such interpretation will be subject to the limitations of uniformity in the meaning given to such expressions etc.
20. It is also a settled and deeply rooted canon of constitutional Page 41 of 46 HC-NIC Page 41 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT jurisprudence, that in the process of constitutional adjudication, the courts ought not to pass decisions on questions of constitutionality unless such adjudication is unavoidable. In this sense, the courts have followed a policy of strict necessity in disposing of a constitutional issue. In dealing with the issues of constitutionality, the courts are slow to embark upon an unnecessary, wide or general enquiry and should confine their decision as far as may be reasonably practicable, within the narrow limits required on the facts of a case.
21. From the above discussion, it is clear that question of constitutionality of a provision is a matter which the courts would venture to examine only for valid, proper and sustainable grounds. We do not see that the provisions of Section 7 of the Act, or any part thereof, suffer from any legal infirmity, excessive legislative power or violate any legal right of any person, including the petitioner, much less a constitutional right. Keeping the principle of strict necessity in mind, the courts do not venture to examine the constitutional validity of a provision and even strike down such provisions, if they are constitutional and a Court does so only if the situation created by such legislation is irremediable or unredeemable. None of these circumstances exist in the present case.
22. In fact, it is not necessary for us to deliberate on this issue at any greater length to notice that in a case under Regulation 23 of the Dental Council (Election) Regulations, 1952, where it was provided that the President shall, no later than 60 days before the date of occurrence of vacancy/vacancies, forward a notice by registered post to the Registrar of each University concerned, requesting him to hold an election not later than the date specified in the notice. These regulations are framed under the Dentists Act, 1948.
23. Sections 6 and 7 of that Act deal with the tenure and election of the President, Vice President and the Members of the Dental Council of India. Section 6(1) of the Dentists Act further provides that, subject to the provisions of that Section, an elected or a nominated member would hold the office for a term of five years from the date of his election or nomination, or until his successor has been duly elected or nominated, whichever was longer. The language of that Section is pari materia with that of Section 7 of the 1970 Act.
24. Challenge was raised to the constitutional validity of Section 6(1) of the Dentists Act, read with Regulation 23 of the Dental Council (Election) Regulations, 1952, framed thereunder. A Constitution Bench of this Court repelled the said challenge in the case of Dental Council of India v. H.R. Prem Sachdeva and held as under:-
"7. A conjoint reading of the various provisions of the Act Page 42 of 46 HC-NIC Page 42 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT and the Regulations referred to above go to show that the term of office of the members of the Council is five years from the date of the election or nomination, as the case may be. Section 6(1), however, also provides that a nominated or elected member, after the expiry of the term, may continue "until his successor has been duly elected or nominated, whichever is longer". The expression "whichever is longer"
does suggest the continuation after the expiry of the term. Can it, however, be construed to mean that if the authorities fail to act as per clauses (a) to (f) of Section 3, the member concerned can continue to remain in office till perpetuity? In our opinion that could not be the intention of the law-makers. Regulation 23 (supra) does give an indication of what we have said above.
8. A reasonable interpretation of the provisions of the Act and the Regulations would be that elections/nominations to the Council should normally be held/made once in five years. However, if for some valid reasons the elections cannot be held during the term of five years, the same should be held within a reasonable time thereafter and the continuance in office of the elected/nominated members should not go on for perpetuity. The continuance in office, after the expiry of the term, should only be a stopgap arrangement to avoid a vacuum. The obligation to nominate/hold elections is of various authorities obliged to elect/nominate members to the Council under clauses (a) to (f). The Act and the Regulations are silent about the period during which elections/nominations should be made/held as also about the consequences of not holding the elections or making nominations within the five- year term or soon thereafter and this lacuna gives rise to unnecessary litigation. We hope that the authorities concerned shall take appropriate measures by amending the provisions of the statute or the Regulations or frame appropriate rules so that the ambiguity regarding the maximum period, after the expiry of the five-year term during which election/nomination should be held/made is removed."
25. For the reasons recorded above, we follow the view expressed by the Constitution Bench. Therefore, we have no hesitation in repelling the challenge raised by the petitioner regarding the constitutionality of Section 7 of the Act.
32. We are conscious of the fact that this Court has to adopt a purely judicial approach. The Constitution and the Rule of Law are the only supreme powers in any democracy and no higher duty rests upon this Court, than to enforce, by its decree, the will of the Legislature, as expressed in a statute, unless such statute is plainly and unmistakably in violation of the Constitution or Rule of Law.
31. However, when it is found that there is no right on elected members existing on the date of coming into force of the amended Page 43 of 46 HC-NIC Page 43 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT provisions, to continue in office, statutory authority is not absolved from taking immediate steps for holding of the elections. The voter lists were finalized on 7.9.2015. No satisfactory reasons are provided for not taking immediate action after 7.9.2015 to start with further process as statutorily required under 1982 Rules to hold the election. In the affidavit-in-reply, further time of four months is sought to complete election process. There are no good reasons provided in the affidavit-in-reply filed on behalf of respondent No.5 for four months time to hold the elections.
32. In 1982 Rules, Rule 16 provides for drawing of Schedule for election. Stages mentioned therein come after finalization of the voter list. Rule 16 reads as under:-
16. Appointment of dates, etc., for various stages of an election-(1)(a) The Collector, in consultation with the Registrar, in the case of societies falling under clause (i) of section 74-C (1), and in consultation with the District Registrar, concerned, in the case of societies falling under other clauses of section 74-C (1) , shall draw the schedule for elections, and by order in Form I appoint:-
(i) The last date, time and place of making Not later than 15 days from the nominations. date of order of the Collector.
(ii) The date of publication of nominations As and when received till the last
date fixed for making
nominations.
(iii) Date time and place of scrutiny of Not later than 2 days after the
nominations. last date for making nomination.
(iv) Date of publication of the list of valid Not later than 2 days after the
nominations. scrutiny.
(v) Date by which candidature may be Within 6 days from the date of
withdrawn. publication of the list of valid
candidatures.
(vi) Date of publication of final list of The day next succeeding the last
contesting candidates. date fixed for withdrawal of
candidatures.
(vii) Date on which and the time during which 10 days from the date of
poll shall be taken. publication of the final list of
contesting candidates.
(viii) Date, time and place of counting of votes. Not later than the third day from
the date on which the poll is
taken.
(ix) Date of declaration of the results of Immediately after counting of
voting. votes.
Explanation.-(I) (a) If the last date in reckoning dates as specified in the above cases is a public holiday, the next succeeding working day Page 44 of 46 HC-NIC Page 44 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT shall be fixed for the respective events.
(b) There shall be at least one polling station for every 1.000 voters or more and the number and places of the polling stations shall be fixed in consultation with the Registrar/District Registrar and the Societies concerned calling objections and suggestions of the voters thereof. In case the polling stations are spread over either in the district or the town, the Collector shall make arrangements to get all the ballot boxes to the office of the Returning Officer or to the registered office of the societies as he deems fit. The date on which the ballot boxes should be so brought shall also be mentioned in the order in Form I:
Provided that, the Collector may at his discretion specify the number of polling stations for a lesser number of voters with due regard to the convenience of the voters.
(c) Except with the previous approval of the Registrar, the dates fixed under this rule shall not be changed within 10 days of the date fixed for the poll:
Provided that, if the Collector is of opinion that it is necessary in the public interest to modify the order and there is no sufficient time for obtaining the previous approval of the Registrar to such modifications, the Collector may, for reasons to be recorded in writing, modify the order without the previous approval of the Registrar. In every such case, the Collector shall forthwith send a copy of the modified order alongwith the reasons recorded by him for such modification to the Registrar.
(2) Nothing contained in this rule shall apply when fresh poll is taken under rule 52 .
33. Total time required for completing the steps as per the Schedule provided in Rule 16, would hardly be around 30 to 35 days. After the voter lists were finalized on 7.9.2015, time of nearly two months is about to be over. Therefore, in the facts of the case and considering the provisions of Section 145-C with Section 74-C of the Act, the Court deems it proper to direct the concerned authorities, including the Collector, to complete the process of election and to hold the election from the stage of finalization of the voter list within a period of one and half months from today.
34. For the reasons stated above, the first petition, being Special Civil Application No.14948 of 2015 is disposed of with direction to the respondent Nos.3 and 5 to immediately start with the election Page 45 of 46 HC-NIC Page 45 of 46 Created On Sat Nov 07 01:12:31 IST 2015 C/SCA/14948/2015 JUDGMENT process from the stage of finalization of the voter list and to complete the entire process of election and to hold election within a period of SIX WEEKS from today, i.e. on or before 17th December 2015. Second petition, being Special Civil Application No.15660 of 2015 is dismissed.
Direct Service is permitted.
Sd/-
(C.L.SONI, J.) Omkar Page 46 of 46 HC-NIC Page 46 of 46 Created On Sat Nov 07 01:12:31 IST 2015