Rajasthan High Court - Jaipur
Sultan Singh vs State Of Rajasthan And Anr. on 5 September, 1988
Equivalent citations: 1988WLN(UC)244
Author: Ashok Kumar Mathur
Bench: Ashok Kumar Mathur
JUDGMENT
1. This writ petition has been filed for quashing the order (Annexure P5) of the Registrar, Rajasthan Co-operative Societies, Jaipur (Respondent No. 2) dated March 15, 1988 by which the Executive Committee of the Krya Vikray Sahkari Samiti Ltd., Abu Road (Sirohi) (here in after referred to as 'the Abu Road K.V.S Samiti') has been removed and the Assistant Registrar, Co-operative Societies, Sirohi has been appointed as its Administrator, for issuing direction that the petitioner continues to respresent the said Samiti in the Sirohi Central Co operative Bank, Sirohi and also continues to be its Chairman and for declaration that the provisions of Section 139, Rajasthan Co-operative Societies Act, 1955 (here in after referred to as 'the Act') and Rule 110, Rajasthan Co-operative Societies Rules, 1966 (here in after referred to as 'the Rules') are ultra vires the Constitution of India. The facts of the case giving rise to this petition may be summarised thus.
2. The petitioner is a member of the Abu Road KVS Samiti. He was elected as its Chairman on 13-1-1985. He was also elected as the Chairman of the Sirohi Central Co-operative Bank, Sirohi on 2-8-1987. As per bye law No. 11(7) of the Bye Laws of the Abu Road RVS Samiti, the Executive Committee is entitled to continue to function even after the expiry of its term of three years till the members of the New Committee are elected. It passed a resolution on May 21, 1987 that the petitioner would continue to represent the Samiti in the Sirohi Central Co-operative Bank Ltd., Sirohi. The Joint Registrar also allowed him to continue to represent the Abu Road KVS Samiti in the Sirohi Central Co-Operative Bank till the election of the Board of Directors of the KVS Samiti is held. In pursuance of the order of the State Government, the Registrar, dissolved the Executive Committee of the Abu Road KVS Samiti by his order, Annexure P 5 dated March 15, 1988 without giving an opportunity of hearing to the petitioner.
3. The respondents have filed their reply to the show-cause notice, raising a preliminary objection against the maintainability of the writ petition on the ground that the Administrator, "Abu Road KVS Samiti has not been impleaded in the writ petition as he has duly taken over the charge on March 17, 1988 It has also been stated that the Government of Rajasthan exercising its power under Section 139 of the Act read with Rule 110 of the Rules, have issued a general order, Annexure P 6, applicable to all marketing societies throughout the Rajasthan whose Directors have completed their terms of three years, exempting the applicability of the provisions of Sections 36(1) and 36(6) and Rules 38(2) and 38(4) to strengthen the democratic set up of the Co-operative Societies. It has also been stated that Section 139 of the Act and Rule 110 of the Rules are not ultra vires the Constitution, there is no infirmity of any kind in the order (Ex. 6) passed by the State Government under Section 139 of the Act and also in the order (Ex. 5) passed by the Registrar, dissolving the Executive Committee of the Abu Road KVS Samiti, the petitioner cannot insist for his continuance in office beyond the period of three years which has expired on January 12, 1988 when he cannot continue as Chairman of Abu Road KVS Samiti, he cannot continue to represent it in the Sirohi Central Co-operative Bank and also to continue as its Chairman. It has further been stated that there was no question of the compliance of the provisions of Sub-sections (1) and (6) of Section 36 and Sub-rules (2) and (4) of Rule 38 after the passing of the order Ex.P 6 under Section 139 of the Act and Rule 110 of the Rules, the petitioner is not debarred under Section 34 of the Act from contesting elections in future and his interpretation of the provisions of Section 34 of the Act is not correct.
4. It has been contended by the learned Counsel for the petitioner that the impugned Ex. P 5 has been passed without complying with the provisions of Section 36 of the Act and Rule 38 of the Rules, the petitioner was entitled to continue in the office till another Committee was constituted, the election is not being held due to the negligence of the State Government, the order Ex.P 5 has been passed mechanically by the Registrar and no opportunity of hearing was given to the petitioner prior to passing it. He also contended that as a result of the impugned order, the petitioner stands debarred from contesting the election in future under Section 34 of the Act. He lastly contended that the provisions of Section 139 of the Act and Rule 110 of the Rules are ultra-vires the Constitution of India as they confer uncontrolled and uncanalised powers in the hands of the Government.
5. The learned Government Advocate duly supported the orders (Anxs. P5 and P6). He also contended that the provisions of Section 139 of the Act and Rule 110 of the Rules are aot ultra vires the Constitution.
6. It is correct that Section 139 of the Act and the Rules do not lay down the principles on which exemption can be granted or provisions shall apply with modifications and the decisions of this matter is left to the discretion of the Government. This has been done for applying the provisions according to the policy or principle laid down by the statute itself. Such provisions are generally designed to further the objective set out in the preamble. If the Government in making the selection or modification does not proceed or follow the policy or the principle, the executive action but not the statute should be condemned as unconstitutional. Section 46 of the Co-Operative Societies Act, 1912 (Central Act No. 2 of 1912) and Section 60, Madras Co-operative Societies Act, 1932 are similar to Section 139 of the Act. The vires of 60, Madras Co-Operative Societies Act, 1932 were examined in Registrar, Cooperative Societies v. K. Kanjabmu . It has been observed in paras 12 and 13 as follows:
But, numerous as the provisions are, they are not capable of meeting the extensive demands of the complex situations which may arise in the course of the working of the Act and the formation and the functioning of the societies. In fact, the too rigorous applications of some of the provisions of the Act may itself occasionally result in frustrating the very objects of the Act instead of advancing them. It is to provide for such situations that the Government is invested by Section 60 with a power to relax the occasional rigour of the provisions of the Act and to advance the objects of the Act. Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government tinder Section 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear.
13. We are therefore of the view that Section 60 is not void on the ground of excess delegation of legislative power.
It cannot, therefore be said that the provisions of Section 139 of the Act and Rule 110 of the Rules are ultra vires the Constitution.
7. The order Ex.P 6 of the Government of Rajasthan dated May 14, 1988 passed under Section 139 of the Act and Rule 110 of the Rules has been made applicable only to those KVS Societies whose terms of 3 years had expired. The order recites that this decision has been taken in order to strengthen the democratic set up and Co-operative movement. In any view of the matter, the order Ex.P 6 does not suffer from any infirmity or illegality. In pursuance of this order, the Registrar, Rajasthan Co-operative Societies, Jaipur passed the impugned order EK.P 5. By virtue of the order Ex P 6, the provisions of Sub-sections (1) and (6) of Section 36 of the Act, Sub-rules (2) and (4) of Rule 38 ceased to be applicable. It may also be noted that the said bye law No. 11(7) was subject to the provisions of Rule 38(1) of the Rules under which Committee can be removed and administrator can be appointed, This rule coupled with the order Ex.P 6 of the Government passed under Section 139 of the Act and Rule 110 of the Rules empowered the Registrar to pass the impugned order EK.P 3 even in the absence of any ground mentioned in Sub-section (1) of Section 36, without consulting the financing bank under Sub-section (6) of Section 36 and without giving an opportunity of hearing to the Committee or the Member-concerned under Sub-rule (2) of Rule 38 of the Rules. It is thus clear that the order Ex.P 5 is quite legal and valid.
8. There is no force in the contention of the petitioner that by virtue of the order Ex.P 5, he stands debarred from contesting elections in future. It is sufficient to mention here that Section 34 of the Act is applicable only when a member is removed on any of the grounds mentioned in Section 36(1) of the Act. It is not in dispute that the petitioner has not been removed on any such ground.
9. Consequently, the writ petition is dismissed. There will be no order as to costs.