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[Cites 15, Cited by 1]

Madhya Pradesh High Court

Jawaharlal Nehru Sahkari Agriculture ... vs Cooperation Department on 6 July, 2017

Author: Rajeev Kumar Dubey

Bench: Rajeev Kumar Dubey

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   HIGH COURT OF MADHYA PRADESH: BENCH AT
                    INDORE
D.B: HON'BLE SHRI P.K.JAISWAL & HON'BLE SHRI
           RAJEEV KUMAR DUBEY, JJ.

             WRIT APPEAL NO.182/2017


     JAWAHARLAL NEHRU SAHKARI AGRICULTURE PRODUCE
                PROCESSING SOCIETY LTD.
                          Vs.
               THE STATE OF M.P & OTHERS

             WRIT APPEAL NO.181/2017

     JAWAHARLAL NEHRU SAHKARI AGRICULTURE PRODUCE
                PROCESSING SOCIETY LTD.
                          Vs.
               THE STATE OF M.P & OTHERS

             WRIT APPEAL NO.183/2017

     JAWAHARLAL NEHRU SAHKARI AGRICULTURE PRODUCE
                PROCESSING SOCIETY LTD.
                          Vs.
               THE STATE OF M.P & OTHERS

         Shri Vivek.K.Tankha, Senior Advocate
         with Shri A.Dhanodkar, Advocate for
         the appellant.
        Shri Umesh Gajankush, Dy.A.G for the
        respondents No.1 & 2.
        Ms.M.Ravindran, Advocate for respondent
        No.3.

                   O R D E R

(Passed on 06.07.2017) Per Rajeev Kumar Dubey, J:

1. This order shall also govern disposal of Writ Appeal No.181/2017 and Writ Appeal -2- No.183/2017 as the issues involved in all these matters are inter-related.
2. This writ appeal has been filed against the order dated 23.02.2017 passed by learned Single Judge in W.P.No.4966/2014 whereby learned Single Judge rejected the petition filed by the appellant society being aggrieved by the order dated 30.06.14 passed by the Joint Registrar,Co-operative Societies, Indore Division, in exercise of powers under section 12(2) of the M.P. Co-

Operative Societies Act, 1960 (for short 'the Act') by which bye-laws of the appellant society Jawaharlal Nehru Sahkari Agriculture Produce Processing Society Ltd. (for short 'appellant society') have been amended.

3. Writ appeal 181/17 has been filed against the order dated 23.02.2017 passed by learned Single Judge in W.P.No.4353/2015 whereby learned Single Judge rejected the petition filed by the appellant being aggrieved by the order dated 25.06.15 by which the Additional Commissioner, Co-operative Society had informed the joint Director, Co- operative Society, Indore that the period of the Board of Directors of the Co-Operative -3- Societies have come to an end, therefore, directed to take appropriate action as per section 49(7A) of the Act.

4. Writ appeal 183/17 has been filed against the order dated 23.02.2017 passed by learned Single Judge in W.P.No.118/2014 whereby learned Single Judge rejected the petition filed by the appellant society being aggrieved by the order dated 26.12.13 by which election authority had stayed the election program which was notified on 18.12.2013.

5. Brief facts of the case are that appellant society is a society registered under the M.P. Co-Operative Societies Act, 1960. The election of Director of the society took place in the year 2008 and the tenure of the Director had expired on 28.01.2013. On 29.09.2012 the Board of Directors applied to the respondent No.5/M.P Co-Operative Election Authority for holding an election and according to that the election programme was issued on 18.12.2013 declaring the election of society and Mr.B.S. Alawa, Deputy Commissioner, Cooperation, district Khargone was appointed as Returning Officer.

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6. One Kanhaiyalal Mahajan raised an objection before the Election Officer that as per section 48(8) of the Act the Board of Directors cannot be more than 15 and as per section 22(7) of the Act unless and otherwise directed by the Registrar the number of delegates elected by farmer members of the society cannot be more than one third of number of representative of societies. On that, while the process of election was pending, the M.P. Co-Operative Election Authority addressed a letter dated 26.12.2013 seeking guidance from respondent no.2 (Commissioner, Cooperation and Registrar, Co-Operative Societies, Bhopal) in the matter and also endorsed a copy to the Returning Officer directing him to stay the election process till the guidance is received from Registrar, Co-Operative Societies. The order dated 26.12.2013 was challenged by the appellant society in W.P.No.118/2014.

7. Respondent No.2 in exercise of powers under section 22(7) read with Section 12 of the Act directed the the respondent no.3 to incorporate the amendment in bye-laws No.22.1, 22.2 and 22.3 of the bye-laws of -5- appellant/society. On that respondent no.3 issued "Adhyapeksha Patra" dated 24.05.14 along with proposed amendment to the appellant/society with the direction to amend the bye-laws. The appellant/society was further directed to raise the objection, if any, within a period of 15 days. In response to the aforesaid letter, appellant submitted reply stating that in the Special General Meeting dated 21.06.2014, the society opposed the amendment and requested that the original bye-laws of the appellant society are in accordance with the provisions of section 22(7) of the Act of 1960 and also do not adversely affect the interest of the society in any manner. Still respondent No.3 by order dated 30.06.2014 incorporated the proposed amendment in the bye-laws of appellant society. Being aggrieved by that order, appellant filed writ petition No.4966/2014 which was disposed of by the learned Single Judge vide order 23.02.2017, hence this writ appeal.

8. Learned counsel for the appellant submitted that the action of the Joint Registrar is in violation of the provisions -6- of section 12(1) and 12(2) of the Act as the petitioner/society was neither given the mandatory 60 days time for the amendment of bye-laws as provided under the Rule nor was given a mandatory opportunity of being heard after sixty days but before issuing any order amending the bye-laws of the society. Section 12(2) of the Act provides that before passing the order of amendment of bye-laws, the Registrar must seek opinion of the Apex Federal Society which is a mandatory condition. The Joint Registrar had not solicited the opinion of Apex Federal Societies viz. All India Federation of Cooperative Society Bombay, All India Federation of Sugar Factory New Delhi and National Cooperative Development Corporation New Delhi or Apex Bank, Bhopal. Clauses 22(1), 22(2) and 22(3) have been amended by the Joint Registrar under section 22(7) of the Act. The bye-laws of the society have been registered by Joint Registrar at the time of registration of the society in the year 2002. The appellant/society had already provided in clause 22 of its bye- laws for appointment of 15 Directors excluding the government nominees and ex-

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officio members as per the provisions of section 48(8) of the Act and since the society had already complied with the provisions of section 48(8) of the Act of 1960, therefore, there is no need to amend the bye laws of the society in the light of the amendment in section 48(8) of the Act. Section 12 further requires that before registering the bye-laws the Registrar must satisfy himself that the amendments are necessary and desirable in the interest of the society. There is no evidence available on record how the Registrar satisfied himself that the amendments are in the interest of society. Even as per law, the Registrar had not given 60 days time to file reply but learned Single Judge without considering the facts wrongly held that the final order was rightly passed prior to completion of 60 days without appreciating the fact that appellant/society was granted only 15 days time to raise objection, hence the appellant/society had no option but to submit the objection within a period of 15 days which was illegal and without jurisdiction and contrary to section 12(2) of the Act which provides for minimum period -8- of 60 days for raising objection. Learned Single Judge in the impugned order only considered the contention in regard to section 12(1) that 60 days notice was not given but did not consider the other legal grounds raised by the appellant.

9. Learned counsel for the State submitted that the provisions of section 48(8) of the Act were amended by the M.P Act No.12/13 and according to the amended provisions number of Directors in any cooperative society cannot be more than 15 subject to the provisions of section 52(1) of the Act excluding the nominees of the government and ex-officio members of the government. If any bye-laws or Rules are running contrary to the statutory provisions of the Act then such rules or bye-laws are to be ignored. The appellant/society cannot hold the elections as per the bye-laws by ignoring the statutory amended provisions of section 48(8) and the amended Act, therefore, respondent No.3 did not commit any mistake in amending the bye-laws of the society. From the order of Joint Registrar, it is also clear that he passed the order according to section 12 of the Act and also -9- gave time to the society for amending the bye-laws. If the appellant/society had passed the resolution that they did not want to amend the bye-laws there was no question of giving 60 days time for amending the bye- laws, hence learned Single Judge did not commit any mistake in rejecting the petition.

10. We have heard learned counsel for the parties and perused the record.

11. The order passed by the learned Single Judge reads as under:

W.P.No.4966/2014
23.02.2017:
Parties through their counsel. Petitioner before this Court has filed this present petition being aggrieved by the order dated 30.06.2014 passed by the Joint Registrar, Co-operative Societies, Indore Division, Indore in exercise of powers under Section 12 (2) of the Act, 1960 by which bye-laws of the society have been amended.
Facts of the case reveal that petitioner-society is a society registered under the M.P. Cooperative Societies Act, 1960 and election of the director of the petitioner society has taken place in the year 2008 and tenure of the petitioner- society expired on 28.01.2013. The Board of Directors applied to the M.P. Co- operative Election Authority on 29.09.2012 -10- for holding an election and election programme was issued on 18.12.2013 declaring the election of thepetitioner society and Shri B.S. Alawa, Deputy Commissioner, Cooperation District- Khargone was appointed as Returning Officer.
While process of election was pending, the M.P. State Cooperative Election Authority addressed a letter dated 26.12.2013 seeking guidance from the Commissioner Cooperation and Registrar, Cooperative Societies, Bhopal in the matter. The Commissioner directed the Deputy Commissioner, Cooperative Societies for staying the election process till the guidance is received from the Registrar.

The order dated 26.12.2013 was challenged by the present petitioner-society in W.P. No.118/2014 and this Court has granted an interim order and the aforesaid writ petition is pending.

In the present case, petitioner is aggrieved by the order dated 30.06.2014 by which bye-laws of the society have been amended. Petitioner's contention is that on 24.05.2014, the petitioner-society was directed to carry out the amendment in the bye-laws and without following the prescribed procedure as provided under Rule 12(1) of M.P. Cooperative Societies Act, 1960, the Registrar has amended the bye-laws of the society.

Learned counsel for the petitioner has vehemently argued before this Court that until and unless, the prescribed procedure is followed within 60 days as provided under Rule 12(1) of the Act, the Registrar cannot direct for amendment of the bye- laws and cannot amend the bye-laws, therefore, the impugned order is bad in law. Section 12(1) and 12(2) of the M.P. Cooperative Societies Act, 1960 read as under:-

12. Power to direct amendment of bye-laws.-

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(1) Notwithstanding anything contained in this Act, or the rules or byelaws, on the request of more than fifty per cent of the members of the society or if the Registrar considers that an amendment of the bylaws of society is necessary or desirable in the interest of such society, he may, by an order in writing to be served on the society in the prescribed manner, require the society to make the amendment within sixty days.
(2) If the society fails to make the amendment within the time specified by the Registrar, the Registrar may after giving the society an opportunity of being heard and after soliciting the opinion of such Apex Federal society, as may be notified by the State Government, register such amendment and issue a certified copy thereof to such society."

In light of the aforesaid statutory provisions of law as contained in Section 12 (1) of the Act, the petitioner- society was directed vide letter dated 25.04.2014 to carry out the amendment as the amendment became necessary in light of Section 22, Sub-section 7 of the Act. The same reads as under:-

Section 22 - Votes of Members. - (7). Unless otherwise directed by the Registrar in respect of any particular society the delegates on the board of Directors shall not any time exceed one- third of the number of representatives of societies (fractions being neglected)."

In the present society, there were 12 representatives from the grower category and 2 representatives of the society and there was one representative from Krishi -12- Upaj Mandi Samitis whereas Sub-section 7 of Section 22 provides that delegates of the board shall not exceed any time from 1/3 of the representative of the society (fractions being neglected).

In the present case, delegates from grower category are 12 in numbers and members of the society are 2 in numbers and in those circumstance, a direction was issued to amend the bye-laws.

It has been vehemently argued by Shri A.M. Mathur, learned senior counsel that provision of 60 days' time was not followed by the respondent.

Return of the society reflects that after receiving the notice, the society has categorically stated by submitting a list of representative based upon the meeting of the society, which had taken place on 24.06.2014 and forwarded the minutes of the meeting in which the society had resolved not to carry out the amendment, meaning thereby, the society had decided that before expiry of 60 days as categorically stated that the amendment would not be carried out as per the direction of the Registrar and after taking into account the reply of the society, the final order has been passed. In the considered opinion of this court, the time limit of 60 days as provided under the Act will not be applicable in the present case. In the present case, the so carrying out the amendment, therefore, after taking into account the reply of the society, the impugned order has been passed. The society has also been heard in the matter. As the respondent has taken care of the reply filed by the society, this Court is of the considered opinion that the impugned order passed by the respondent (P-1) does not warrant interference. The writ petition stands disposed of.

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12. Section 12(2) of the Act of 1960 reads as under:

12. Power to direct amendment of bye-

laws--(1) Notwithstanding anything contained in this Act, or the rules or bye-laws, on the request of more than fifty per cent of the members of the society or if the Registrar considers that an amendment of the bylaws of society is necessary or desirable in the interest of such society, he may, by an order in writing to be served on the society in the prescribed manner, require the society to make the amendment within sixty days.

(2) If the society fails to make the amendment within the time specified by the Registrar, the Registrar may after giving the society an opportunity of being heard and after soliciting the opinion of such Apex Federal Society, as may be notified by the State Government, register such amendment and issue a certified copy thereof to such society.

13. From perusal of impugned order of learned Single Judge it is clear that learned Single Judge in the impugned order only considered the contention with regard to section 12(1) that 60 days notice was not given, but did not consider the other legal grounds raised by the appellant. Section 12 also requires -14- that before registering the bye laws, the Registrar must satisfy himself that the amendments are necessary and desirable in the interest of the society and also should provide opportunity of being heard after sixty days and before issuing any order amending the bye-laws of the society. Section 12(2) of the Act provides that before passing the order of amendment of bye-laws the Registrar must seek opinion of the Apex Federal Society but learned single judge did not consider whether the Registrar had followed the aforesaid provisions and if not what was its impact. Learned Single Judge also did not consider the objection whether the amendment carried out in the year 2013 would apply on the society which had been registered by the Joint Registrar of the society in the year 1982 and whether the Joint Registrar was empowered to carry out the impugned amendment under section 22(7) of the Act of 1960. Therefore, the impugned order dated 23.02.2017 passed by the learned Single Judge in W.P.No.4966/2014 is set aside without going into the merits of the case and the case is remanded to the learned Single Judge with a request to pass -15- a fresh order in the matter after giving opportunity of hearing to both the parties and after considering all the objections raised by the appellant society.

14. In the light of aforesaid, the order dated 23.02.2017 passed by the learned Single Judge in W.P.No.4353/2015 and the order dated 23.02.2017 passed by learned Single Judge in W.P.No.118/2014 are also set aside without going into the merits of the cases and these cases are also remanded to the learned Single Judge with a request to pass a fresh order in the matter after giving opportunity of hearing to both the parties in the light of the fresh order which will be going to be passed in W.P.No.4966/2014.

15. Writ appeals are disposed off accordingly.




(P.K.JAISWAL)                         (RAJEEV KUMAR DUBEY)
  J U D G E                                  J U D G E



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