Patna High Court - Orders
Board Of Directors Of Bihar State ... vs The Government Of India Through Its ... on 2 July, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.23268 of 2013
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1. Board Of Directors Of Bihar State Co-Operative Marketing Union Ltd. (
Biscomaun), West Gandhi Maidan, Patna Through Its Chairman Sunil
Kumar Singh S/O Sri Maharana Pratap Singh R/O 301, Kanti Palace,
Shashtri Nagar, P.S- Shashtri Nagar, Town And Distt- Patna.
.... .... Petitioner/s
Versus
1. The Government Of India Through Its Secretary Ministry Of Agriculture
(Department Of Agriculture An D Co- Operation), Krishi Bhawan, New
Delhi- 110001
2. The Central Registrar, Co- Operative Societies, Department Of Co-
Operation Krishi Bhawan, New Delhi- 110001
3. Director (Co- Operation), Department Of Agriculture And Co- Operation,
Ministry Of Agriculture, Krishi Bhawan, New Delhi- 110001.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Y.V. Giri, Senior Advocate
Mr. Ishwari Singh
For the Respondent/s : Mr. Amit Shrivastava
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
C.A.V. ORDER
9 02 -07-2014Present writ application under Article 226 of the Constitution of India has been filed by the petitioner who is Chairman of the Board of Directors of Bihar State Cooperative Marketing Union Ltd. (for short "BISCOMAUN") seeking a direction upon the respondents, particularly, the Central Registrar Cooperative Societies, Department of Cooperation, Government of India, New Delhi (Respondent no. 2) to register the BISCOMAUN as a Multi State Cooperative Society (for short "M.S.C.S.") in the light of provisions contained in Section 103 of the Multi State Co-operative Societies Act, 2002 (for short "M.S.C.S. Act, 2002). By filing interlocutory application (I.A. No. Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 2 2447 of 2014), the petitioner has prayed for quashing of the order dated 21.4.2011 (Annexure-2) passed by the respondent Central Registrar, Cooperatives (for short "CRC"). By the said order, representation of the petitioner was rejected on the ground stated therein. By filing yet another I.A. No. 2532 of 2014, the petitioner has sought direction restraining Respondent Nos. 4 to 6 from interfering with the affairs of BISCOMAUN exercising their jurisdiction under the Bihar Cooperative Societies Act, 1935.
Heard Mr. Y.V. Giri, learned Senior Counsel for the petitioner assisted by Mr. Ishwari Singh, Mr. Amit Srivastava for the Union of India and its functionaries, Mr. N.N. Ojha for the State of Jharkhand, A.C. to A.A.G.-III for the State of Bihar and Mr. Yogendra Mishra for the Intervenor. For impleadment of Sri Vinay Kumar Shahi, one of the Directors(now Ex-Director) of the BISCOMAUN for which a separate interlocutory application has been filed.
This Court would first consider few contentions of the parties before embarking on the real issue involved in the present case. Before that few relevant facts glaring from the record need to be stated.
BISCOMAUN is a Cooperative Society which was registered under the Bihar Cooperative Societies Act, 1935 and is, Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 3 therefore, governed by the provisions of the said Act, rules framed thereunder and its bye laws and was registered as such, in the year 1950 (vide Registration No. 12P of 1950). The Head Office is situated in the township of Patna. The area of its operation extended to the entire State of Bihar. There is no controversy between the parties that the State of Bihar was bifurcated into two states namely existing State of Bihar and Jharkhand w.e.f. 15.11.2000 by virtue of the Bihar Reorganisation Act, 2000 (for short "Reorganisation Act") which was made effective from 15.11.2000. By operation of the said Reorganisation Act, the State of Bihar was bifurcated and a new State of Jharkhand came into existence by carving out some territories of the undivided State of Bihar. By virtue of the provision contained in Section 66 of the Reorganisation Act, any Body Corporate constituted under the Central Act, the State Act or Provincial Act for the existing State of Bihar or any part thereof became an Inter-State Body Corporate then the body corporate shall, on and from the appointed day continue to function and operate in areas in respect of which it was functioning and operating immediately before that date subject to such decision/direction as may be from time to time issued by the Central Government until other provision is made by law. The BISCOMAUN continued to be managed as before under the Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 4 provisions of the Bihar Cooperative Societies Act under which it was registered. The Central Government with a view to consolidate and amend the law relating to Cooperative Societies with object not confined to one State and serving the interest of members in more than one State enacted M.S.C.S. Act, 2002 which came into effect on 19th August, 2002. It is to be noted here that the MSCS Act, 2002 was enacted after repealing the MSCS Act, 1984. Section 103 of the M.S.C.S. Act, 2002 deals with the Cooperative Societies functioning immediately before reorganization of States and provides under sub-section (1) thereof as under:
"103. Co-operative societies functioning immediately before reorganization of States.- (1) Where, by virtue of the provisions of Part II of the State Reorganisation Act, 1956 (37 of 1956) or any other enactment relating to reorganization of States, any co-operative society which immediately before the day on which the reorganization takes place, had its objects confined to one State becomes, as from that day, a multi-State co-operative society, it shall be deemed to be a multi-State co-operative society registered under the corresponding provisions of this Act and the bye-laws of such society, in so far as they are not inconsistent with the provisions of this Act, continue to be in force until altered or rescinded."
Relevant steps were taken by the BISCOMAUN for being registered with the CRC as a Multi State Cooperative Society. The matter was delayed on one count or the another Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 5 which propelled the petitioner Sunil Kumar Singh to file a writ petition bearing Writ Petition (C) No. 2080 of 2011 before the Delhi High Court for directing the respondent CRC to take steps for registration of the BISCOMAUN as a Multi State Cooperative Society and to issue Certificate of Registration under MSCS Act, 2002. The said writ petition was heard and disposed of on 28.3.2011 (Annexure-1) directing the CRC to dispose of the representation of the petitioner within one month from the date of communication of the order. In the light of the said order, a representation (Annexure-7) (at page 236 of the brief) filed by the petitioner was considered and rejected by the CRC on the ground set out therein. The petitioner, as noticed, has challenged the said order by filing an interlocutory application besides the prayer made in the writ petition.
In the backdrop of the facts noticed above, few contentions of the parties at the onset merit to be considered. It has been argued by Mr. Srivastava as well as Mr. Yogendra Mishra that in all fairness, the petitioner should again approach the Delhi High Court for the relief(s) prayed for in this application. This Court should decline consideration of the matter on merit and relegate the petitioner to the Delhi High Court for ventilation of the grievance. It has further been contended that the present writ Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 6 application at the instance of the petitioner representing the Board of Directors would not be maintainable since any such application could have been filed by the BISCOMAUN represented by the Chief Executive Officer (Managing Director) who is a government servant. Another contention of the parties is that considering the fact that the petitioner in the application filed before the CRC and the subsequent application(s) inasmuch as in the present writ petition also has prayed for consideration of his case/grievance in the light of the provisions contained in M.S.C.S. Act, 2002 and as such, the matter should be considered strictly in the light of the provisions contained in MSCS Act, 2002. Mr. Giri, learned counsel for the petitioner while dealing with the last contention of the respondents submits that although there is no material difference between the M.S.C.S. Act, 1984 and M.S.C.S. Act, 2002, however, considering the prayer made in the writ petition as well as the clear stand taken by the petitioner before the respondent CRC, the matter can be examined in the light of the provisions contained in M.S.C.S. Act, 2002. The parties, therefore, are not at variance on this issue making the task of this Court easy. The present grievance of the petitioner shall be considered in the light of statutory provisions contained in M.S.C.S. Act, 2002.
The two other contentions noticed hereinabove now Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 7 require consideration. There is no controversy between the parties that the BISCOMAUN was operating in the erstwhile State of Bihar and its area of operation extended to the territories now falling under the State of Jharkhand by reason of bifurcation of the erstwhile State of Bihar. The relief has been prayed for against the CRC.
Article 226 (2) of the Constitution of India enumerates as under:
226(2). The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories."
In view of the above, the petitioner can very well raise the grievance either before this Court or before the Jharkhand High Court or before the Delhi High Court. The said contention of the respondents, therefore, merits to be rejected.
Locus of the petitioner to maintain the present writ petition has also been raised as an issue by the respondents. The petitioner has contended with reference to the diverse proceedings/resolutions of the Board of Directors that such writ petitions shall be maintainable by the petitioner who is the Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 8 Chairman of the Board of Directors of BISCOMAUN. Annexure- 8 to the supplementary affidavit is the copy of the proceedings of the Board of Directors held on 11.2.2014. Agenda No. 7 thereof leaves no manner of doubt to conclude that the Chairman of the Board of Directors of BISCOMAUN (the petitioner) had the approval of the Board of Directors to file and continue the present writ proceeding before this Court. Annexure-6 enclosed to the second supplementary affidavit is another resolution of the Board of Directors of BISCOMAUN held on 24.2.2011 which clearly indicates that the Board of Directors of the BISCOMAUN had approved filing of appropriate legal proceeding by the Chairman of the Board of Directors for seeking appropriate relief from the concerned authority under Section 103 of the MSCS Act, 2002. There is yet another resolution dated 15.5.2011 taken in the 24th Annual General Meeting of the BISCOMAUN (at page 143 of the brief) wherein under Resolution No. 1, the Chairman of the BISCOMAUN was authorised to take needful steps for registration of BISCOMAUN under provision of Section 103 of the M.S.C.S. Act, 2002 inasmuch as the Bye-laws were also resolved to be amended for the said purpose. In the light of the aforesaid, this Court has no difficulty to hold that present writ petition, at the instance of the petitioner being the Chairman of the Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 9 Board of Directors of BISCOMAUN is maintainable. Even otherwise, any person having legal interest in the affairs of the BISCOMAUN can file and maintain writ petition. Reference in this regard may be made to an unreported judgment by the Division Bench of the Allahabad High Court in W.P No. 8189(M.B.) of 2012 (Ram Krishna Pokhariyal and Another vs. Union of India and Ors) on which reliance has been placed by the petitioner. In that case, the Court entertained the writ petition raising issues akin to the present writ petition filed by the delegates of the society having found their legal interest in the affairs of the society.
Having held so, this Court would now proceed to consider the main contention(s) of the parties raised in the writ petition. In order to appreciate the same, this Court would first survey relevant provisions of the Bihar Reorganisation Act and the M.S.C.S. Act, 2002 on which reliance has been placed by the parties. Section 66 of the Reorganisation Act states as under:
"66. General provision as to statutory Corporations.-(1) Save as otherwise expressly provided by the forgoing provisions of this Part, where any body corporate constituted under a Central Act, State Act or Provincial Act for the existing State of Bihar or any part thereof has, by virtue of the provisions of Part II of this Act, become an inter-State body corporate, then, the body corporate shall, on and from the appointed day continue to function and operate in those areas in Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 10 respect of which it was functioning and operating immediately before that day, subject to such directions as may from time-to-time be issued by the Central Government, until other provision is made by law in respect of the said body corporate. (2) Any directions issued by the Central Government under sub-section (1) in respect of any such body corporate shall include a direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect subject to such exceptions and modifications as may be specified in the direction."
The Central Government with a view to consolidate and amend the law relating to Cooperative Societies with object not confined to one State enacted M.S.C.S. Act, 2002 effective from 19th August, 2002. Section 3(p) thereof defines Multi State Cooperative Society as under:
"3(p) "multi-State co-operative society" means a society registered or deemed to be registered under this Act and includes a national co-operative society and a Federal co-operative."
Section 7 thereof provides registration of Multi State Cooperative Society with the CRC. It reads thus:
"7. Registration.- (1) If the Central Registrar is satisfied-
(a) that the application complies with the provisions of this Act and the rules;
(b) that the proposed multi-State co-operative society satisfied the basic criterion that its objects are to serve the interests of members in more than one State;
(c) that its bye-laws provide for social and economic betterment of its members through self-
help and mutual aid in accordance with the co-
operative principles;
(d) that the proposed bye-laws are not contrary to the provisions of this Act and the rules, Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 11 he may register the multi-State co-operative society and its bye-laws.
(2) The application for registration shall be disposed of by the Central Registrar within a period of four months from the date of receipt thereof by him.
(3) Where the Central Registrar refuses to register a multi-State co-operative society, he shall communicate, within a period of four months from the date of receipt of the application for registration, the order of refusal together with the reasons therefor to the applicant or applicants, as the case may be:
Provided that no order or refusal shall be made unless the applicants have been given a reasonable opportunity of being heard:
Provided further that if the application for registration is not disposed of within a period of four months specified in sub-section (2) or the Central Registrar fails to communicate the order of refusal within that period, the application shall be deemed to have been accepted for registration and the Central Registrar shall issue the registration certificate in accordance with the provisions of this Act and the rules made thereunder."
Upon registration and the certificate granted as per the Section 8 thereof, such Multi State Cooperative Society shall be treated as a Body Corporate by the name under which it is registered. Section 11 of the M.S.C.S. Act, 2002 inter alia provides that no amendment of any bye-laws of a Multi State Cooperative Society shall be valid unless such amendment has been registered under this Act. Section 22 of the M.S.C.S. Act, 2002 provides as under:
"22. Conversion of a co-operative society into a multi-State co-operative society.- (1) A co-operative society may, by an amendment of its Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 12 bye laws, extend its jurisdiction and convert itself into a multi-State co-operative society:
Provided that no such amendment of bye-laws of a co-operative society shall be valid unless it has been registered by the Central Registrar. (2) (a) Every proposal for such amendment of bye-laws shall be forwarded to the Central Registrar in accordance with the provisions contained in sub-section (4) of section 11.
(b) if the Central Registrar, after consulting the Registrars of Co-operative Societies of the States concerned, has satisfied himself that such amendment-
(i) fulfills the requirements of the members being from more than one State;
(ii) is in accordance with the provisions contained in sub-section(4) of section 11, he may register the amendment within a period of six months from the date of receipt thereof by him:
Provided that no co-operative society shall be deemed to have been converted into a multi-State co-operative society on any ground whatsoever unless such society is registered as a multi-State co-operative society.
(3)The Central Registrar shall forward to the co-operative society a copy of the registered amendment together with a certificate signed by him and such certificate shall be conclusive evidence that the amendment has been registered. (4) Where the Central Registrar refuses to register an amendment of the bye-laws of a co-
operative society, he shall communicate the order of refusal together with the reasons therefor to the society in the manner prescribed within seven days from the date of refusal.
(5) (a) Once the amendment of bye-laws has been registered by the Central Registrar, the co- operative society shall, as from the date of registration of amendment, become a multi-State co-operative society.
(b) The Central Registrar shall forward to the co-operative society certificate signed by him to the effect that such society has been registered as a Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 13 multi-State co-operative society under this Act and also forward a copy of the same to the Registrar of Co-operative Societies of the State concerned.
(c) The Registrar of Co-operative Societies referred to in clause (b) shall thereupon make an order directing that the society had, as from the date of registration by the Central Registrar, ceased to be a society under the law relating to co-
operative societies in force in that State."
This Court has already extracted relevant part of Section 103(1) of the M.S.C.S. Act and as such, they are not repeated.
Mr. Y.V. Giri, learned Senior Counsel for the petitioner has contended that indisputably the BISCOMAUN is a Body Corporate registered under the Bihar State Cooperative Societies Act, 1935 in the year 1950. Its area of operation extended to entire State of Bihar prior to its bifurcation into two states in the year 2000 by virtue of Reorganisation Act. In view of the provisions contained in Section 103(1) of the M.S.C.S. Act, 2002 which is pari materia same as Section 95(1) of the M.S.C.S. Act, 1984, it became a Multi State Cooperative Society w.e.f. 15.11.2000 the date of its reorganization by virtue of deeming provisions under Section 103(1) of the M.S.C.S. Act, 2002. By fiction of law, the BISCOMAUN automatically became a Multi State Cooperative Society. The other conditions incorporated in sub-sections/paragraphs of Section 103 of M.S.C.S. Act, 2002 are Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 14 only ministerial in nature. Once the BISCOMAUN is registered as Multi State Cooperative Society under M.S.C.S. Act, 2002, the respondent CRC would enforce the conditions which shall be complied by the BISCOMAUN. In fact, few steps in this regard have already been taken. In this regard, he has relied on the following judgments:
(i) Naresh Shankar Srivastava versus State of U.P. and Others [(2009) 16 SCC 157].
(ii) Bihar State Cooperative Milk Producers Federation Limited vs. The State of Jharkhand and others[2003 (2) B.L.J.R. 1467].
(iii) Bihar Rajya Sahkari Bhumi Vikas Bank Simit vs. State of Bihar & Ors [20012 (3) PLJR 873].
He has also relied on an unreported order passed by a Division Bench of the Allahabad High Court in Writ Petition No. 8189(MB) of 2012 Ram Krishna Pokhariyal and Another versus Union of India and Ors. as well as the order passed by the Apex Court in Civil Appeal No. 4145 of 2007 (State of Jharkhand and Ors versus Bihar State Co-operative Milk Producers Federation Ltd). Mr. Giri would further contend that Section 3(p) of the M.S.C.S. Act 2002 itself categorizes two kinds of Multi State Cooperative Societies; one which is so after conversion and Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 15 registration and the one which is deemed to be registered under this Act. The provisions contained in Section 7 of the Act pertains to those societies or Body Corporate(s) which fall in first category. Section 22 of the M.S.C.S. Act, 2002 deals with a situation where an existing Cooperative Society applies for conversion into a Multi State Cooperative Society by amending its bye-laws as provided under Section 11(4) of the M.S.C.S. Act, 2002. Those provisions would, therefore, not apply to the case of BISCOMAUN since by virtue of provision contained in the Reorganisation Act, its area of operation stood bifurcated and fell within the territorial jurisdiction of two States carved out from one State. The idea is to obviate the administrative exigencies arising out of creation of a new State. Under Section 103(1), which has the overriding effect being the Central law, any Cooperative Society which immediately before the day on which the reorganization takes place had its objects confined to one State becomes, as from that day, a multi state cooperative society is entitled to be registered under the corresponding provisions of this Act. Assailing the order dated 21.4.2011 (Annexure-2) passed by the respondent CRC on the representation filed in the light of the order, it has been stated that the grounds stated therein for rejection of the representation is/are contrary to the provisions of Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 16 the M.S.C.S. Act, 2002 as well as the Reorganisation Act. He relies in this regard, in particular, on paragraph 4 of the said order wherein the respondent CRC has taken note of the objections to such registration under M.S.C.S. Act, 2002 filed by the State of Bihar as well as the Government of Jharkhand.
Mr. Amit Srivastava learned counsel appearing for the Union of India and respondent CRC, per contra, supported the stand taken by the respondent CRC in the order dated 21.9.2011 (Annexure-2). It has been urged that although by virtue of the provisions contained in the Reorganisation Act and the M.S.C.S. Act, 2002, the petitioner qualifies for being registered as Multi State Cooperative Society but only upon fulfillment of conditions therefor. In fact, the petitioner BISCOMAUN also knew the position in law when on 16.9.2008 a representation by the Chairman, BISCOMAUN was filed with a request for conversion of BISCOMAUN under deeming provision laid down in Section 103(1) of the M.S.C.S. Act, 2002. The said request was not accompanied by a formal proposal alongwith details of General Body resolutions, Audit Report, amended bye-laws etc. The Respondent CRC by letter dated 23.1.2009 requested ROCs of Bihar and Jharkhand to forward their comments. Both the State Governments filed their comments. The deficiencies in the Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 17 document(s) submitted by the BISCOMAUN to the CRC has resulted in non-grant of registration under Section 103(1) of the M.S.C.S. Act, 2002. It has been submitted that under Section 22 (2) (b) proviso of the M.S.C.S. Act, 2002, the BISCOMAUN cannot be automatically converted into a Multi State Cooperative Society and registered as such unless there is compliance of Section 11 of the M.S.C.S. Act, 2002. There was no such proviso under Section 18 of the M.S.C.S. Act, 1984 which is the corresponding Section 22 of the M.S.C.S. Act, 2002. The various documents enclosed with the writ petition and affidavits subsequently filed by the petitioner indicate that the BISCOMAUN had been taking steps for its conversion as Multi State Cooperative Societies inasmuch as a resolution to this effect was also passed on 15.5.2011 for conversion of BISCOMAUN into a Multi State Cooperative Society. In the submission of Mr. Srivastava, considering the relevant provisions of the M.S.C.S. Act, 2002, there is no automatic conversion under Section 103(1) as urged by the petitioner. Such conversion and registration under M.S.C.S. Act, 2002 is subject to fulfillment of other provisions contained in the M.S.C.S. Act, 2002. Combating the submissions of the petitioner based on the judgment cited in support thereof, it has been submitted that in none of those orders/cases, the proviso Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 18 to Section 22(2)(b) of the M.S.C.S. Act, 2002 has been noticed or considered. The ratio laid down in those cases, therefore, does not help the petitioner. The Respondent CRC has notified deficiencies by various communications enclosed to the counter affidavit to the BISCOMAUN which have not, till date, been rectified. There is no denial that the petitioner by virtue of the provisions contained in the Reorganisation Act and the M.S.C.S. Act, 2002 is now legally entitled to be registered as a Multi State Cooperative Society but the same can be done only after complying with the requirements contemplated in M.S.C.S. Act, 2002.
I have considered the submission of the parties and perused the materials on record. The case of the petitioner is that even if the claim of the petitioner is considered under 103(1) of the M.S.C.S. Act, 2002, the BISCOMAUN qualifies for deemed registration as the provisions contained in 103(1) is pari meteria the same as contained in Section 95(1) of the M.S.C.S. Act, 1984. The aforesaid contention of the petitioner has not seriously been disputed by the respondents. In Bihar Rajya Sahkari Bhumi Vilas Bank Simit(supra), a Division Bench of this Court noticed the two provisions in the light of ratio laid down in the case of Naresh Shankar Shrivastava (supra) and found to the same effect in Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 19 paragraph 5 thereof.
Mr. Giri has contended relying on the Bihar State Cooperative Milk Producers Federation Ltd. (supra) that contention of the petitioner in the said case that it was, by virtue of Section 95(1) of the M.S.C.S. Act, 1984, was a deemed Multi State Cooperative Society was fully supported by the State of Bihar wherein the Division Bench of the Jharkhand High Court held that after reorganization of the State by virtue of the Reorganisation Act, the COMFED (the Cooperative Society) shall be deemed to be a Multi State Cooperative Society under Section 95(1) of the M.S.C.S. Act, 1984 and was entitled to grant of Certificate of Registration in the terms stated therein as was done in the case of U.P. Cooperative Federation Ltd., Lucknow cited therein. The question posed for consideration in paragraph 3(b) was thus answered in favour of the petitioner(s) of the said case.
Similarly, the Hon'ble Apex Court in Naresh Shankar Shrivastava (supra), on which strong reliance has been placed by the petitioner, after noticing the relevant provisions of the M.S.C.S. Act, 1984 and the relevant provisions of the State Reorganisation Act held as under in paragraph nos. 24, 25, 33 and 35:-
24. A perusal of the abovementioned provisions makes it crystal clear that Section 95 of the Multi-Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 20
State Act will be squarely applicable to the case in hand. This provision addresses a situation like the present one. It provides that where the object of the cooperative society is confined to one State, would become from the date of reorganization of the State, a multi-State cooperative society by virtue of Part II of the States Reorganisation Act and then it shall be deemed to be multi-State cooperative society and the bye-laws of such society shall continue to be in force until altered.
"25.It is to be kept in mind that Section 95 of the Multi-State Act has been incorporated to meet a particular situation. The said section provides that it would be operative as a consequence of reorganization of States and particularly when any area or portion of area of the society is bifurcated or divided and then fell in the jurisdiction of two State administrations. The idea is to obviate the administrative stalemate arising out of creation of a new State and new administration. This section is independent of all other sections of the Act.
33.Besides, we cannot lose sight of the fact that Section 18 of the Multi-State Act lays down a procedure for conversion of a State cooperative society into a multi-State cooperative society whereas Section 95 of the Multi-State Act contained in Chapter XII deals with a specific situation in which certain cooperatives societies would become deemed multi-State cooperative societies automatically by operation of law. Therefore, the finding of the High Court that until the procedure laid down for converting a cooperative society into a multi-State cooperative society is followed, the cooperative society would continue to be a State cooperative society to be governed and regulated by the provisions of the U.P. Act, is not correct.
35. On 14.2.2001, when the Central Registrar of the Multi State Cooperative Societies issued the registration certificate granting registration of PACSFED under the Multi-State Act, admittedly, the Uttaranchal Act of 2003 was not in existence. Even otherwise, a State legislation viz. the Uttaranchal Act which has been enacted subsequently cannot have an overriding effect over a Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 21 Central law viz. the Multi-State Act. The Uttaranchal Act can govern and regulate the cooperative societies whose objects extend to and apply within the State of Uttaranchal. So, the finding of the High Court that with the enforcement of the Uttaranchal Cooperative Societies Act, 2003, with effect from 21.5.2003, the Multi-State Act shall not be applicable is erroneous."
In view of the aforesaid, this Court finds much substance in the contention of the counsel for the petitioner that BISCOMAUN is entitled for its registration by fiction of law as contained in Section 103(1) of the M.S.C.S. Act, 2002.
Next contention of the parties now require consideration. Mr. Shrivastava, Counsel for the respondent Union of India and CRC has contended that in view of the pleading on record, the BISCOMAUN took relevant steps for amendment of its bye-laws for its conversion and registration under M.S.C.S. Act, 2002 and as such, until the conditions as contemplated under various provisions of the M.S.C.S. Act, 2002 are not complied with, the respondent CRC would not be legally obliged to register the BISCOMAUN and grant of registration certificate as provided under Section 8 of the M.S.C.S. Act, 2002. In this context, he has relied on Section 22 of the M.S.C.S. Act, 2002 (already noticed above) wherein it has been provided that no Cooperative Society shall be permitted such conversion as Multi State Cooperative Society unless the conditions stated therein are complied with. Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 22 Mr. Srivastava has submitted that the aforesaid provisions as contained in Section 22 did not exist in M.S.C.S. Act, 1984. Sub- section (3) of Section 126 of M.S.C.S. Act, 2002 in this context assumes relevance and is noticed hereinbelow:
"126(3) Every multi-State co-operative society, existing immediately before the commencement of this Act, which has been registered under the Co- operative Societies Act, 1912 (2 of 1912) or under any other Act relating to co-operative societies in force, in any State or in pursuance of the provisions of the Multi-unit Co-operative Societies Act, 1942 (6 of 1942), or the Multi-State Co-operative Societies Act, 1984 (51 of 1984) shall be deemed to be registered under the corresponding provisions of this Act, and the bye-laws of such society shall, in so far as they are not inconsistent with the provisions of this Act, or the rules, continue to be in force until altered or rescinded."
As noticed above, the Hon'ble Apex Court in paragraph 33 of Naresh Shankar Shrivastava (supra) clearly negated the submission and disapproved the findings recorded by the High Court that until the procedure laid down for converting a Cooperative Society into a Multi State Cooperative Society is followed, the Cooperative Society would continue to be a State Cooperative Society governed and regulated by the provisions of the U.P. Act. A harmonious construction of the various provisions of the M.S.C.S. Act, 2002 also appears to the same effect.
Seen thus, it has been consistently held in the judgments on which reliance has been placed by learned counsel Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 23 for the petitioner that the M.S.C.S. Act, 1984 contemplated two categories of Multi State Cooperative Society, one which is registered after conversion and the another deemed to be registered under this Act. The present case has similar foundation in the light of the provisions of the M.S.C.S. Act, 2002. The contention of the petitioner that the BISCOMAUN qualifies for its registration under deemed provision as contemplated under Section 103(1) of the M.S.C.S. Act, 2002 and the other provisions contained in Section 103 and/or Section 22 of the M.S.C.S. Act, 2002 are the ministerial acts to be performed or complied with by the BISCOMAUN appears to be well founded. Provisions akin to Section 22 of the M.S.C.S. Act, 2002 existed under Section 18 of the M.S.C.S. Act, 1984. Proviso to sub-section 2(b) of Section 22 therefore shall have not much consequence. It would only infer therefrom that the registration shall be granted after amending the bye-laws of the applicant Society falling in line with the provisions of the M.S.C.S. Act, 2002. Be it noted that contention of Mr. Giri is also that other conditions laid down in Section 103 of the M.S.C.S. Act, 2002 are only ministerial acts which require to be complied with by the BISCOMAUN upon accepting its status as a Multi State Cooperative Society under deemed provisions contained in Section 103(1) of the M.S.C.S. Act, 2002 Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 24 and grant of registration certificate.
Taking into consideration the aforesaid facts and circumstances emanating from the record and in the light of the ratio laid down in the cases cited at Bar on behalf of the petitioner, this Court is satisfied that the BISCOMAUN is entitled to be registered not by way of conversion but under deemed provision as contained in Section 103(1) of the M.S.C.S. Act, 2002 as M.S.C.S. It is held accordingly.
The conditions contemplated under various provisions of Section 103 of the M.S.C.S. Act, 2002 will be complied by the petitioner to the satisfaction of the respondent CRC in order to achieve full status of the Multi State Cooperative Society. Further, from the pleadings on record, it is more than evident that the BISCOMAUN has already taken steps in the light of objection raised by the respondent CRC to bring its bye-laws compatible with the provisions of the M.S.C.S. Act, 2002. The respondent CRC is, therefore, directed to issue registration certificate in favour of the BISCOMAUN as a Multi State Cooperative Society as contemplated under Section 7 of the M.S.C.S. Act, 2002 subject to fulfillment of the conditions as contained in various provisions of Section 103 of the M.S.C.S. Act, 2002 within a reasonable period of time to be granted by the Patna High Court CWJC No.23268 of 2013 (9) dt.02-07-2014 25 respondent CRC failing which such registration of BISCOMAUN as M.S.C.S. shall stand withdrawn/cancelled.
By foot note, it is further clarified that the State of Bihar or the state of Jharkhand shall have no locus to object such registration of the BISCOMAUN under M.S.C.S. Act, 2002 on any ground not contemplated under the M.S.C.S. Act, 2002 in view of the facts noticed hereinabove.
The order dated 21.4.2011 passed by the respondent CRC (Annexure-2) is quashed and set aside. The writ application is allowed. Various interlocutory applications filed therein stand disposed of.
(Kishore Kumar Mandal, J) Pankaj/-
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