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The sum and substance of the argument of learned counsel questioning the decision of the respondent authorities in relegating even such members / office bearers of the society who had not resigned from their respective posts, to face election is that although the Registrar is vested with the powers of dissolution of a Managing Committee in the circumstances set forth in Clause-a & b of Section 41(5) of „the Act‟ but a dissolution of the Managing Committee for the reasons so mentioned would not mean setting aside the election of even those members / office bearers of the Managing Committee who had not resigned. According to the learned counsel appearing for the petitioners even though the Managing Committee would stand Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 13 dissolved upon being reduced to a minority, that would not have any impact on the election of the members / office bearers who do not choose to resign and it is only such of the posts which have fallen vacant upon resignation of the members which would have to be thrown opon for election in view of the overriding provisions of Section 14(9) of „the Act‟ which was amended under Amendment Act 6 of 2013. It is the contention of the learned counsel for the petitioners that if the vacancies occur when the term of the Board is less than half of the original term then the same is to be filled up by nomination and in case the term is more than half then these vacancies are to be filled up through a by-election. Mr. Jha learned counsel appearing on behalf of the petitioners in CWJC No. 11665 of 2015 relying upon a Bench decision of this Court reported in 2009(4) PLJR 1042 Deepak Kumar Jha vs. State of Bihar has submitted that a Bench of this Court had an occasion to consider a situation where the election to a society had resulted in electing a minority committee which did not constitute a coram. A decision was taken by the Department / State Election Authority to hold fresh election for the entire Managing Committee including the post in which the election had been held and which was questioned by the elected member before this Court. The Bench in consideration of the provision of Rule 21P, 22 and 23 of the Bihar Co-operative Societies Rules framed under „the Act‟ and bye-laws 25 and 27 of the Co-operative Credit Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 14 Societies in question, was of the opinion that it is only the vacancies remaining which needs to be filled up by fresh election and that the law did not prescribe that even such of the elected members would lose their election if 50 per cent level is not achieved in any election. With reference to the Bench decision in the case of Deepak Kumar Jha (supra) it was sought to be canvassed by Mr. Jha that the attempt of the court would be to give a purposeful construction to the provision which would effectuate the object of the Act and not to negate its intendment. Mr. Jha referring to the 97th constitutional amendment introducing Chapter IX B in the Constitution submits that the importance of the co-operative movement has been recognized and a purposeful interpretation has to be given to the provisions of Section 41(5) read with Section 14(9) of „the Act‟. Mr. Jha referring to the Chapter VI C of „the Act‟ submits that special provisions have been incorporated in relation to Primary Agriculture Credit Co-operative Society and Section 44 BF only speaks of supersession. According to Mr. Jha Chapter VI of the Act not only relates to dissolution of a Managing Committee but even the provisions of section 41 reads as such. It was submitted that although the circumstances for inviting order of supersession, suspension and dissolution may be distinctly provided but its effect would be the same. Mr. Jha concluded his argument by referring to the proviso to Section 41(5) of „the Act‟ to submit that the proviso itself provides for Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 15 restoration of management and which would mean that it is only those vacancies which have occurred due to resignation which has to be put up for election and not those elected members whose membership / office bearers did not resign.

Mr. Yogendra Mishra while opposing the writ petitioners in CWJC No. 11665 of 2015 submits that Section 14(9) of the Act was a consequence of the 97th Amendment to the Constitution. Referring to Article 243 ZJ he submits that the term of the members and office bearers of the Board is co-terminus with the term of the board and it is only where any casual vacancy arises and the term of the Board is less than half that the same is to be filled up by nomination while in other casual vacancies occurring where the term of the Board exceeds half of the original term, it has to be filled up by a by-election. He submits that the provision of Section 14(9) of „the Act‟ has been framed to fill up the casual vacancies occurring during the existence of the Managing Committee but not where the very identity of the Managing Committee is wiped out under an order of dissolution passed under Section 41(5) (b) of „the Act‟. With reference to the provisions of Section 41 he submits that the provisions relating to the issue of dissolution is in two parts and Section 41(1) to Section 41(4) of „the Act‟ relates to circumstances where the functioning of the society is Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 20 affected due to mal functioning of the Managing Committee warranting an order of suspension / supersession at the discretion of the Registrar. He submits that on the other hand Section 41(5) of „the Act‟ is in distinct circumstances where half of the members of the Managing Committee choose to resign from the Managing Committee thus reducing it to a minority. He submits that the moment a majority of the members of the Managing Committee resign, there is no option for the Registrar but to dissolve the Managing Committee. Mr. Mishra, referring to a decision of this Court reported in AIR 1990 Patna 6 (Vaidya Singh vs. State) has submitted that it was held that where the Co-operative Societies is silent on any issue then an answer to the circumstances can be searched under the Representation of People Act. He submits that just as a dissolution of parliament leads to a fresh election, the same would follow also in the present case and no sooner a Managing Committee is dissolved, whether or not any elected member or office bearer remain to resign, he would also face dissolution. Learned counsel has referred to a decision of the Supreme Court reported in AIR 2003 SC 87:(2002) 8 SCC 237 which is a matter arising out of presidential reference in the Gujarat Assembly Election matter and with particular reference to paragraph- 53 and 54 of the judgment he submits that the term dissolution has been explained to mean bringing to an end any legislative body. He submits that Section 14(9) of „the Act‟ is a provision merely to cater Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 21 to casual vacancies and where the vacancies would exceed half, the only consequence is dissolution.

The members and the office bearers of a Managing Committee owe their existence to the term of the Managing Committee as is manifest from Article 243ZJ (2) of the Constitution of India as well under Section 14(9) of „the Act‟. The provision very eloquently provides that the term of the members and office bearers of the Board shall be co-terminus with the Board meaning thereby that the term of the members / office bearers of the Managing Committee would be five years or until the existence of the Board. To avoid any confusion, I would clarify that the term „Board‟ as defined under Section 2(e) of „the Act‟ means the Board of Directors or the Governing Body or the Managing Committee of a Co-operative Society. The substantive provisions of Section 14(9) of „the Act‟ provides that the term of the elected members / office bearers of the Board would be five years and shall be co-terminus with the term of the Board which by itself conceives of an eventuality where the term of the Board may be curtailed for reasons explained under Section 41 of „the Act‟. The reasons can be due to „supersession‟ or „dissolution‟ but the effect is the same and the Managing Committee gets wiped out and so ends the term of the members / officer bearers constituting Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 23 the Managing Committee. Although in my opinion, Clause-(a) and

(b) of Section 41(5) of „the Act‟ have no different connotation and clause(a) which provides for an eventuality resulting from resignation of the majority of members / office bearers of the Managing Committee is fully catered to by the eventuality present at clause (b) but in either of the situation the result is the same and a dissolution of the Managing Committee would take in its fold even those elected members / office bearers of a Managing Committee who have not chosen to resign. Though the argument of learned counsel appearing for the petitioners in relying upon the second proviso to Section 14 (9) of the Act to save the election of the members / office bearers who do not choose to resign but are made to face dissolution by reason of vacancy caused by resignation of more than half of the members of the Managing Committee or for other reasons appears very attractive and appropriately reasonable but I am afraid that is not the legislative intendment reflected from the statutory provisions of Section 41(5) of „the Act‟ which gives no such indication nor does the provisions relating to dissolution proceeds to save the election of any of such member / office bearer of the society. On the contrary the proviso to Section 41(5) of „the Act‟ very clearly speaks about a constitution of „newly elected Managing Committee‟ and which would obviously include the post of the office bearers as well as the members of the Managing Committee who do not choose to resign. The Supreme Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 24 Court in Gujarat Assemble case (supra) at paragraph-53 of the judgment has explained the distinction between the term „dissolution‟ and „prorogation‟ to mean that whereas dissolution brings a legislative body to an end and terminates its life, „prorogation‟ on the other hand, only ends a session unless it is co-incident with the end of a legislative term. It is explained that „prorogation‟ unlike „dissolution‟ does not affect the life of the legislative body which may continue until it is brought to an end by dissolution. Section 41 of the Act elaborates the circumstances where the term of the Managing Committee of a society can be curtailed. The provision falls under Chapter VI which rightly reads as „Dissolution of Managing Committee‟. Section 41(1) to 41(4) of „the Act‟ confers discretionary power on the Registrar to curtail the term of an elected Managing Committee where the Managing Committee of a society has been making persistent defaults or has been negligent towards its duty or has worked against the interest of the society or has brought about a stalemate in the functioning of the committee and when the Registrar has been empowered to order for supersession of the society as well as to disqualify the elected members from contesting any election for next five years. Similarly Section 41(5) of the Act empowers the Registrar to order for dissolution of a Managing Committee where it has been reduced to a minority either due to resignation of majority of members and office bearers or due to vacancies caused by any reason Patna High Court CWJC No.9491 of 2015 dt.17-08-2015 25 whatsoever. The statutory provisions though vests discretion in the Registrar to dissolve a Managing Committee of a society in such circumstances by use of the word „may‟ but in my opinion, the effect of the word „may‟ in the present context would have to be interpreted as „shall‟ for no sooner that a Managing Committee is reduced to a minority there is hardly any option available to the Registrar but to dissolve the society and the moment an order of dissolution is passed, it ends the life of the Managing Committee and takes into fold even such of the members and office bearers who have not chosen to resign. Any other interpretation to the provision would be reading into the provision and supplying „Casus omissus‟ Mr. Jha while relying upon the judgment of this Court in Deepak Kumar Jha (supra) came very near in drawing analogy therefrom but in my opinion the judgment relied upon was in circumstances where a Committee was yet to be constituted due to the numbers falling below the coram and when this Court held that it is only the vacant posts which needs an election and not the entire committee but insofar as the present case is concerned the effect of dissolution is wiping out the committee as a whole.