Punjab-Haryana High Court
Mahi Pal vs Special Secretary To Government ... on 23 August, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: AUGUST 23, 2012
Mahi Pal
.....Petitioner
VERSUS
Special Secretary to Government Haryana, Cooperation Department,
Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. S. S. Dalal, Advocate,
for the petitioner.
Mr. Sunil Nehra, Sr.DAG, Haryana,
for the State.
Mr. S. K. Yadav, Advocate,
for respondent Nos.6 to 10.
*****
RANJIT SINGH, J.
The petitioner is a member of Bhotwas Cooperative Credit and Service Society Ltd.Bhotwas, District Rewari (for short "Bhotwas Society"). Aggrieved against amalgamation of this Bhotwas Society with respondent No.4-Sahranwas Cooperative Credit and CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 2 }:
Service Society Ltd., Sahranwas, District Rewari (for short "Sahranwas Society"), the petitioner has approached this Court through the present writ petition impugning the said order of amalgamation.
While issuing notice of motion, operation of the impugned orders was stayed.
Assistant Registrar issued notice on 14.8.2006 proposing to amalgamate Bhotwas Society with respondent No.5-Khori Cooperative Credit and Service Society Ltd., Khori (for brevity "Khori Society). Order amalgamating these two Societies was passed on 20.9.2006 (Annexure P-2). The petitioner along with some other members filed a revision against this order before the Joint Secretary, Cooperation, Haryana and the order of amalgamation was quashed. The directions were given to the Assistant Registrar to decide the matter again after considering objections/suggestions and after hearing all the affected parties.
Some members of the Bhotwas Ahir filed objections that members from their village be retained in Khori Society, the distance between these two being less than 2 Kms. This time, Assistant Registrar on 30.7.2007 passed an order amalgamating Bhotwas Society with Saharanwas Society. The petitioner filed a revision against this order. The amalgamation order was stayed and finally the revision was dismissed on 27.8.2010 by passing an order, which is referred as non-speaking order. The petitioner accordingly has filed this petition to impugn orders Annexures P-4 and P-6.
The reply has been filed on behalf of respondent Nos.1 to CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 3 }:
3. It is stated that Gram Panchayat of Bhotwas had requested the Registrar through a resolution to merge the Bhotwas Society in Saharanwas Society. Almost 300 members of the Society had also prayed for merging both the Societies. The answering respondents claim to have followed the complete procedure before passing the order of amalgamation. It is stated that the present petition is filed with baseless allegations. It is further alleged that the petitioner has concealed the material facts and has made an attempt to misrepresent. The answering respondents would also contest the challenge raised by the petitioner with regard to powers of the Registrar to amalgamate the Society under Section 14 of the Haryana Co-operative Societies Act, 1984 (for short "Haryana Act".
The respondents accordingly have pleaded that present petition deserves to be dismissed.
The short legal question raised by the petitioner flows from the requirement laid down in Section 14 of the Act. This Section regulates the procedure required to be followed for compulsory amalgamation of the Societies and reads as under:-
"14. Compulsory amalgamation:-(1) Where the Registrar is satisfied that it is essential or desirable in the interest of the co-operative society or co-operative societies that
(i) one or more co-operative societies, be amalgamated with any other co-operative society; or
(ii) two or more co-operative societies be amalgamated to form a new cooperative society, then notwithstanding CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 4 }:
anything contained in section 13, the Registrar, may, by order, after consulting the financing institution, if any, provide for the amalgamation of the said society or societies,-
(a) with any other co-operative society, or
(b) to form new co-operative society, with such
constitution, property, rights, interests, liabilities, duties and obligations, as may be specified in the order. (2) No order shall be made under this section, unless-
(i) a copy of the proposed order has been sent to the society or each of the concerned societies requiring them to file objections or suggestions on the proposed order within 15 days from the date of its receipt;
(ii) the Registrar has considered all objections or suggestions received from such societies or members or creditors thereof, and has made such modifications in the proposed order as he may deem proper;
(iii) every member or creditor of each of the societies to be amalgamated, who has objected to the scheme of amalgamation, shall be entitled to receive within the period specified in the order of amalgamation his share or interest if he be a member, and the amount in satisfaction of his dues if he be a creditor;
(iv) the order referred to in sub-section (1) may contain such incidental, consequential and supplemental necessary to give effect to the amalgamation."
CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 5 }:
It can be, thus, noticed that when two or more co-
operative societies are to be amalgamated to form a new cooperative society, then the Registrar may provide for amalgamation of the said society, but no order shall be made under this Section unless the proposed order has been sent to the society or each of the concerned societies requiring them to file objections or suggestions on the proposed order within 15 days from the date of its receipt. The Counsel for the petitioner primarily pleads that the notice may have been issued in this regard before amalgamating the Bhotwas Society with Saharanwas Society, but the notice did not contain the requisite details to enable the members of the Societies to file meaningful objections. The counsel further contends that to form a new co- operative society, the requirement is also to put the members to notice with regard to constitution, property, rights, interests, liabilities, duties and obligations, which issues are required to be specified in the order/notice. This is so urged on the basis of provisions contained in section 14 (1) (ii) (b) of the Haryana Act. As per the counsel, the notice, which was issued in this regard, did not contain all these essential details and as such the members could not file any effective response to the proposal for amalgamation.
Copy of the notice is on record as Annexure P-1, which, according to the counsel for the petitioner does not contain any details in regard to the constitution of the new committee, its property rights, interests, liabilities etc. The counsel, therefore, pleads that this notice cannot be taken as a valid notice and as such the order passed directing amalgamation of the society would be rendered CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 6 }:
without jurisdiction as having been passed in violation of the statutory provisions of the Act. In fact, initially the counsel for the petitioner has pleaded that no notice under Section 14 of the Haryana Act was issued before directing amalgamation of the society, which was disputed by the State counsel, who referred to a notice dated 19.6.2007, reference to which was contained in the notice. During the course of hearing, Mr.Nehra, Sr.DAG placed before me the notice, which, in fact has been served on the petitioner, society and others. It is then that the counsel for the petitioner has to change his line to state that the notice was not a valid notice and as such order passed on the basis of such a notice cannot be sustained.
In support of his submission, the counsel has placed implicit reliance on the case of The Amerheri Co-operative Agricultural Service Society, Amerheri and another Vs. The State of Haryana and others, 1976 P.L.J. 302. In this case, Division Bench of this court was considering the provisions of Sub-section 8 of Section 13 of the Punjab Co-operative Societies Act as was made applicable to the State of Haryana, which also dealt with the amalgamation of the Co-operative Societas. The provisions of Sub- section (8) of Section 13 of this Act is identically worded as are the provisions of Section 14 of the Haryana Act. This Section reads as under:-
"13(8) Where the Registrar is satisfied that it is essential or desirable in the interest of the society or societies, that two or more societies be amalgamated or any society should be divided to form two or more societies, then, CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 7 }:
notwithstanding anything hereinbefore contained, the Registrar may, after consulting the financing institution, if any, provide for the amalgamation or division of those societies into single society, or into societies with such constitution, property, rights, interests, liabilities, duties and obligations, as may be specific in the order. The other sub-sections of Section 13 of Punjab Act provide as under:-
(9) No order shall be made under this section, unless-
(a) a copy of the proposed order has been sent in draft to the society or each of the societies concerned;
(b) the Registrar has considered and made such modifications in the draft order as may seem to him desirable in the light of any suggestions and objections which may be received by him within such period, being not less than two months from the date on which the copy of the order as aforesaid was received by the society, as the Registrar may fix in that behalf, either from the society or from any member or class of members thereof, or from any creditor or class of creditors. (10) The order referred to in sub-section (8) may contain such incidental, consequential and supplemental provisions as may, in the opinion of the Registrar, be necessary to give effect to the amalgamation or the division.
(11) Every member or creditor of each of the societies to CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 8 }:
be amalgamated or divided, who has objected to the scheme of amalgamation or division, within the period specified, shall be entitled to receive, within the period prescribed, on the issue of the order of amalgamation or division, his share or interest if he be a member, and the amount in satisfaction of his dues, if he be a creditor. (12) On the issue of an order under sub-section (8), the provisions, hereinbefore contained in this section, shall apply to the societies so amalgamated or divided as if they were amalgamated or divided under these provisions, and to the society amalgamated or divided."
While interpreting the provisions of Sub-section (8), this Court viewed that through said sub-section, the Legislature has given sufficient guide-lines to the Registrar, Cooperative Societies, for passing an order of amalgamation or division of cooperative societies. The Court accordingly had expressed itself that while taking into consideration the constitution, property, rights, interest, liabilities, duties and obligations of the societies concerned and from the other guide-lines, the Registrar can form an opinion in a particular case whether to proceed under this sub-section or not.
One of the contention raised before the court was that the impugned orders were not in conformity with the provisions of the Act inasmuch the proposed order of amalgamation should have mentioned about the constitution, property, rights, interests, liabilities, duties and obligations of the societies involved in the amalgamation order, so that the petitioner society, its members and CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 9 }:
its creditors were able to know about the necessary particulars of the societies involved in the amalgamation order. Dealing with this contention, the Court has held as under:-
"The third contention of the learned counsel for the petitioner is also well-founded. As is clear from the scheme of the provisions of the Act, the whole objective of serving the copy of the proposed order in draft on the society, its members or creditors, is to provide them an effective opportunity to raise objections or suggestions after taking into consideration various matters concerning the society with which the society is proposed to be amalgamated and such other relevant matters concerning the society which is going to be amalgamated or divided. The order passed under sub-section (8) of section 13 of the Act has to provide for the constitution, property, rights, interest, liabilities, duties and obligations of the society or societies coming into existence. A copy of the proposed order has also to contain all this information regarding the society or societies to be affected by the order. It is only after these matters are made known to the society or its members or creditors that they can be in a position to raise objections and also to make suggestions and make up their minds to withdraw from the membership or to withdraw their deposits. If the relevant material concerning the constitution, property, rights, interest, liabilities, duties and obligations of the concerned society CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 10 }:
or societies as the case may be is not made known the purposes of the provisions cannot be achieved as no effective objections and suggestions can be made by the society, its members or creditors. We have purposely reproduced the objections mentioned in t he written statement allegedly raised by the representatives of the petitioner-society before the Assistant Registrar, with a view to show that the material regarding the constitution, property, rights, interest, liabilities, duties and obligations etc., having not been mentioned in the proposed order regarding the societies involved in the amalgamation order, the said information had to be supplied by the Assistant Registrar to the alleged representatives of the Society, who, according to the Assistant Registrar, felt satisfied when all such information was brought to their notice. We are, therefore, of the considered opinion that the impugned orders, copies of which are Annexures `P- 3' and `P-5' to the writ petition, are liable to be quashed, as the same fail to comply with the mandatory provisions of sub section (8) and (9) of section 13 of the Act, as no detailed material has been supplied to the petitioner- society so that effective objections and suggestions could be made."
Mr.Nehra did make an attempt to plead that all these considerations had been kept in view, but the impugned order would not indicate if the notice or the proposed order contained all these CIVIL WRIT PETITIOIN NO.22219 OF 2010 :{ 11 }:
requirements. The impugned order of amalgamation, therefore, is not passed after following the proper procedures required under the Statute. For this reason, the impugned orders (Annexures P-4 and P-
6) cannot be sustained and are set-aside. The respondents, however, would be at liberty to serve a fresh notice complying with the requirements of law and till any further order is passed to the contrary, the present arrangement shall continue during the interregnum.
The writ petition is accordingly disposed of.
August 23, 2012 (RANJIT SINGH ) ramesh JUDGE