C/M Of Sahkari Ganna Vikas Samiti ... vs State Of U.P. Thru Secy. And Others
2012 Latest Caselaw 4177 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										Court No. - 5
 

 
Case :- WRIT - C No. - 47233 of 2012
 

 
Petitioner :- C/M Of Sahkari Ganna Vikas Samiti Ltd. And Another
 
Respondent :- State Of U.P. Thru Secy. And Others
 
Petitioner Counsel :- Anil Kumar Srivastava,Swarn Kumar Srivastava
 
Respondent Counsel :- C.S.C.,Ravindra Singh
 

 
Hon'ble Satya Poot Mehrotra,J.

Hon'ble Het Singh Yadav,J.

The present Writ Petition has been filed under Article 226 of the Constitution of India, interalia, praying for issuance of writ, order or direction in the nature of mandamus directing the respondent no. 2 ( Cane Commissioner/Registrar, Uttar Pradesh, Lucknow) to fix a date for holding elections of Committee of Management and so long the election is not held, the petitioners may be allowed to continue till new election takes place.

From the averments made in the Writ Petition, it transpires that Sahkari Ganna Vikas Samiti Limited Swar, District Rampur is a Cane Co-operative Society registered under the provisions of the U.P. Cooperative Societies Act, 1965 (in short the "1965 Act"), and the provisions of the 1965 Act and the Rules framed there-under, namely, the U.P. Cooperative Societies Rules, 1968 (in short the "1968 Rules") are fully applicable in the case of the said Society.

Petitioner No. 1 claiming itself to be Committee of Management of the said Society and the petitioner no. 2 claiming himself to be the Chairman of the Committee of Management have filed the present Writ Petition seeking the reliefs as mentioned above.

The last election in which the petitioner no. 1 was constituted as Committee of Management and the petitioner no. 2 was elected as Chairman was held in the year 2006. The term of the petitioner no. 1 as Committee of Management and the term of the petitioner no.2 as its Chairman have admittedly expired as per the averments made in the Writ Petition.

Grievance of the petitioners, as raised in the Writ Petition, is that despite mandatory provisions contained in sub-section (3) of Section 29 of the 1965 Act, the respondent no. 2 has not taken steps for reconstitution of the Committee of Management. In the circumstances, the petitioners have filed the present Writ Petition seeking reliefs as mentioned above.

Notices on behalf of the respondent nos. 1,2 and 3 have been accepted by the learned Standing Counsel.

Notice on behalf of the respondent no. 4 has been accepted by Shri Ravindra Singh, learned counsel for the said respondent. .

Shri Ravindra Singh, learned counsel for the respondent no. 4 states that the elections of the Committees of Management of the Cane Cooperative Societies were notified on 29.7.2012, and as per the notification, the elections were to be completed by 23.9.2012.

It is further stated by Shri Ravindra Singh that as the amendment is proposed in Rule 84-A of the 1968 Rules, the elections have been postponed.

Shri Ravindra Singh further submits that in view of the provisions contained in clause (a) of sub-section (5) of Section 29 of the 1965 Act, the existing Committee of Management can not continue after the expiry of its term, and the affairs of the Society are to be looked after by the Secretary of the Society as per the provisions contained in clause (e) of sub-section (5) of the 1965 Act so long as the Administrator or Committee of Administrators is not appointed.

It is submitted by Shri Ravindra Singh, learned counsel for the respondent no.4 that in view of the above provisions, the petitioner no. 1 can not be permitted to continue as Committee of Management of the aforesaid Cane Cooperative Society.

Shri Swarn Kumar Srivastava, learned counsel for the petitioners submits that so long as the elections of the aforesaid Cane Co-operative Society are not held, the petitioner no. 1 is entitled to continue to look after the affairs of the aforesaid Cane Co-operative Society in view of the various Division Bench decisions of this Court.

Shri Swarn Kumar Srivastava, learned counsel for the petitioners has relied upon the following decisions:

I.Decision dated 27.5.2011, in Misc. Bench No. 5033 of 2011, C/M Sahkari Ganna Vikas Samit Ltd. Baghpat & others Vs. State of U.P. Through Principal Secretary, Cane Dev. & others.

II.Decision dated 24.7.2012 in Civil Misc. Writ Petitin No. 35578 of 2012, C/M of Sahkari Ganna Vikas Samiti Ltd. And another Vs. State of U.P. Through Secretary and others.

III.Decision dated 16.8.2012, in Civil Misc. Writ Petitin No. 37851 of 2012, C/M of The Kisan Sahkari Chini Mills Samiti Ltd. & another Vs. State of U.P. Through Secretary and others.

IV. Decision dated 22.8.2012 in Civil Misc. Writ Petition NO. 40694 of

2012, C/M The Kisan Shahkari Chini Mills Society Ltd. And another Vs. State of U.P. And others.

V. Decision dated 23.8.2012 in Civil Misc. Writ Petition no. 41362 of 2012, C/M of Sahkari Ganna Vikas Samiti Ltd. And another Vs. State of U.P. Through Secretary and others.

We have considered the submissions made by the learned counsel for the parties.

Section 29 of the 1965 Act provides as under:

"29. Committee of management.- (1) The management of every co-operative society shall vest in a Committee of Management constituted in accordance with this Act, the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the bye-laws.

(2) (a) The term of every Committee of Management shall be (two years] and the term of the elected members of the Committee of Management shall be co-terminus with the term of such Committee.

(b) The provisions of clause (a) shall apply also to a Committee of Management in existence on the date of the commencement of the [The Uttar Pradesh Co-operative Societies (Second Amendment) Act, 2007] and to the elected members of such Committee.

(c) The term of the Committee of Management, which has completed, on or before the date of commencement of the Act referred to in clause (b), the period of two years from the date of its constitution and the term of its elected members, shall expire on such commencement.

(3) Election to reconstitute the Committee of Management of a Cooperative Society shall be completed in the prescribed manner under the superintendence, control and direction of the Registrar atleast fifteen days before the expiry of the term of the Committee of Management and the members so elected shall replace the Committee of Management whose term expires under sub-section (2):

Provided that where the Registrar is satisfied that circumstances exist which render it difficult for him to hold the election on the date fixed, he may postpone the election, and all proceedings with reference to the election shall be commenced a fresh in all respect.

(4) It shall be the duty of the Secretary or the Managing Director of the Co-operative Society, as the case may be, to send to the Registrar, four months before the expiry of the term of Committee of Management, a requisition for conducting the election and to furnish all such information as may be required by him, within such period as may be fixed by him.

(5) (a) Where, for any reason whatsoever, the election of the elected members of the Committee of Management has not taken place or could not take place before the expiry of the term of elected members, the Committee of Management shall, notwithstanding anything to the contrary in any other provision of this Act or the rules made thereunder, or the bye-laws of the society, cease to exist on the expiry of such term.

(b) On or as soon as may be after the expiry of such term, the Registrar shall appoint an Administrator or a Committee of Administrators (hereinafter, in this section, referred to as the Committee) for the management of the affairs of the society until the reconstitution of the Committee of Management in accordance with the provisions of this Act, the rules and the bye-laws of the society and the Registrar shall have the power to change the Administrator or, as the case may be, any member of the Committee or to appoint Committee in place of an Administrator or vice versa from time to time.

(c) Where a committee is appointed under clause (b), it shall consist of a Chairman and such other members not exceeding eight as may be nominated by the Registrar out of which at least two shall be Government servants.

(d) The procedure for summoning and holding of meetings of the Committee the time and place of holding such meetings, the conduct of business at such meetings and the number of members necessary to form quorum thereof shall be such as may be prescribed.

(e) So long as no Administrator or the Committee, as the case may be, is appointed under clause (b), the Secretary or the Managing Director, as the case may be, of the society shall be in charge only of the current duties of the Committee of Management.

Explanation.--Where results of the election of members of the Committee of Management have not been or could not be declared, for any reason whatsoever, before the expiry of the term of the elected members of the outgoing Committee of Management, it shall be deemed that the election of the elected members of the Committee of Management has not taken place within the meaning of this sub-section.

(6) The Administrator or the Committee appointed under sub-section (5) shall, subject to any directions which the Registrar may from time to time give, have the powers to perform all or any of the functions of the Committee of Management or of any officer of the society and shall be deemed for all purposes under this Act, the rule and the bye-laws of the society to be the Committee of Management and the Chairman of such Committee shall exercise the powers and perform the functions of the Chairman of the Committee of Management.

(7) The Administrator or the Committee, as the case may be, appointed under sub-section (5), shall as soon as may be, but not later than the expiry of six months from the date of appointment, arrange for the reconstitution of the Committee of Management in accordance with the provisions of this Act, the rules and the bye-laws of the society to take over the management of the society from the Administrator or the Committee, as the case may be:

Provided that where an Administrator is replaced by a Committee or a Committee by an Administrator as provided in clause (b) of sub-section (5), the period of six months shall count from the date the Administrator or the Committee, as the case may be, was originally appointed.

Explanation.--Notwithstanding that the process of election may have commenced before the appointment of Administrator or the Committee under sub-section (5), a fresh process of election shall commence after such appointments.

(8) Notwithstanding anything to the contrary contained in any other provision of this Act, there shall be at least three professionals with full voting rights on the committee of Uttar Pradesh Co-operative Bank or a Central Co-operative Bank having special knowledge or experience in the field of accounting, law, banking, management, agriculture or rural economy as stipulated by the Reserve Bank of India. In case such professionals do not get elected, they shall be co-opted by the Committee of Management of the Bank as aforesaid."

Sub-section (1) of Section 29 of the 1965 Act provides that the management of every co-operative society shall vest in a Committee of Management constituted in accordance with the 1965 Act, the 1968 Rules and the Bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed by the 1965 Act, the 1968 Rules and the Bye-laws.

Sub-section (2) of Section 29 of the 1965 Act lays down the term of Committee of Management of a Co-operative society.

Sub-section (3) of Section 29 of the 1965 Act provides that the election to reconstitute the Committee of Management of a Co-operative Society shall be completed in the prescribed manner under the superintendence , control and direction of the Registrar atleast 15 days before the expiry of the term of the Committee of Management and the members so elected shall replace the Committee of Management whose term expires under sub-section (2) of Section 29.

Sub-section (4) of Section 29 of the 1965 Act casts the duty on the Secretary or the Managing Director of the Co-operative Society, as the case may be, to send to the Registrar, four months before the expiry of the term of Committee of Management, a requisition for conducting the election and to furnish all such information as may be required by him, within such period as may be fixed by him.

Clause (a) of sub-section (5) of Section 29 of the 1965 Act lays down that where, for any reason whatsoever, the election of the elected members of the Committee of Management has not taken place or could not take place before the expiry of the term of elected members, the Committee of Management shall, notwithstanding anything to the contrary in any other provision of the 1965 Act or the 1968 Rules or the Bye-laws of the Society, cease to exist on the expiry of such term.

Clause (b) of sub-section (5) of Section 29 of the 1965 Act lays down that on or as soon as may be after the expiry of such term, the Registrar shall appoint an Administrator or a Committee of Administrators for the management of the affairs of the Society until the reconstitution of the Committee of Management in accordance with the provisions of the 1965 Act, the 1968 Rules and the Bye-laws of the Society. The Registrar shall have the power to change the Administrator or, as the case may be, any member of the Committee or to appoint Committee in place of an Administrator or vice versa from time to time.

Clause (e) of sub-section (5) of Section 29 of the 1965 Act lays down that so long as no Administrator or the Committee, as the case may be, is appointed under clause (b), the Secretary or the Managing Director, as the case may be, of the Society shall be in charge only of the current duties of the Committee of Management.

Sub-section (6) of Section 29 of the 1965 Act lays down that the Administrator or the Committee appointed under sub-section (5) shall have the powers to perform all or any of the functions of the Committee of Management or of any officer of the Society and shall be deemed for all purposes under the 1965 Act , the 1968 Rules and the Bye-laws of the Society to be the Committee of Management and the Chairman of such Committee shall exercise the powers and perform the functions of the Chairman of the Committee of Management.

Sub-section (7) of Section 29 of the 1965 Act lays down that the Administrator or the Committee, as the case may be, appointed under sub-section (5), shall as soon as may be, but not later than the expiry of six months from the date of appointment, arrange for the reconstitution of the Committee of Management in accordance with the provisions of the 1965 Act, the 1968 Rules and the Bye-laws of the Society to take over the management of the Society from the Administrator or the Committee, as the case may be.

The proviso to sub-section (7) of Section 29 of the 1965 Act lays down that where an Administrator is replaced by a Committee or a Committee by an Administrator as provided in clause (b) of sub-section (5), the period of six months shall count from the date the Administrator or the Committee, as the case may be, was originally appointed.

Thus, it is evident that Section 29 of the 1965 Act lays down the term of Committee of Management of a Co-operative Society. The Committee of Management shall cease to exist on the expiry of such term notwithstanding anything to the contrary in any other provision of the 1965 Act or the 1968 Rules or the Bye-laws of the Society.

Section 29 of the 1965 Act further makes provisions for the management of the affairs of the Co-operative Society after cessation of the existence of the Committee of Management on the expiry of its term. The Registrar is required to appoint an Administrator or a Committee of Administrators for the management of the affairs of the Co-operative Society. So long as such Administrator or the Committee of Administrators is not appointed, the Secretary or the Managing Director, as case may be, of the Society is to be in charge only of the current duties of the Committee of Management.

Sub-section (7) of Section 29 of the 1965 Act casts duty on the Administrator or the Committee of Administrators, as the case may be, to arrange for the reconstitution of the Committee of Management within the time laid down in the said provision.

In our view, the provisions contained in Section 29 of the 1965 Act lay down a complete scheme in regard to the term of Committee of Management, the cessation of the existing Committee of Management on the expiry of such term, the control and management of the affairs of the Co-operative Society on the cessation of the existing Committee of Management till the reconstitution of the Committee of Management including holding of elections for such reconstitution. In case there is failure on the part of the concerned authorities in making appointments of Administrator or Committee of Administrators, or in holding the elections as per the time- schedule laid down in Section 29 of the 1965 Act, this Court in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India can issue appropriate directions for enforcing the legal duties cast on the concerned authorities in this regard.

The petitioners in the present Writ Petition may be granted relief to the extent regarding direction for holding elections as per the provisions contained in the 1965 Act, particularly Section 29 thereof, the 1968 Rules and the Bye-laws of the Society.

However, Shri Swarn Kumar Srivastava, learned counsel for the petitioners submits that this Court should give further direction that the existing Committee of Management i.e. petitioner no. 1 would function till reconstitution of the new Committee of Management after elections. In this regard, he has placed reliance on the decisions of Division Benches of this Court mentioned above at Item Nos. (I) to (V).

In our view, in view of the categorical provisions contained in clause (a) of sub-section (5) of Section 29 of the 1965 Act with non-obstante clause, it will not be proper for this Court to issue any Writ, Order or Direction in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India directing for continuance of the existing Committee of Management whose term has already expired, particularly when Section 29 of the 1965 Act contains the provisions for control and management of the affairs of the Co-operative Society after cessation of the existing Committee of Management on the expiry of its term.

In this regard, we may refer to the decision of a Division Bench of this Court in Committee of Management, District Co-operative Bank Ltd., Deoria and another Vs. State of U.P. and others,2005 (4) AWC 3482 (para nos. 16 and 17), which has been relied upon by the learned Standing Counsel appearing for the respondents no. 1,2 and 3, wherein it has been laid down that in view of Section 29 (5) (a) of the 1965 Act, the Committee of Management is not entitled to continue after expiry of its term.

In the Division Bench decisions shown at Serial Nos. (I) to (V) above, relied upon by Shri Swarn Kumar Srivastava, learned counsel for the petitioners, two directions have been given:

1. Elections of the Committee of Management be held within the time fixed in the said decisions.

2.	In case the Administrator  has not been appointed yet,  the present    Committee of Management  would continue  till the elections are held by the Registrar. 
 
        So far as the Direction no. 1  above is concerned, we  are in respectful agreement  with the aforesaid  Division Bench decisions. 
 

However, as regards the Direction no.2 above, we, with deep respect for the learned Judges who have given the above decisions, regret our inability to agree with the said Direction. As we are sitting in a Division Bench, we can not take a view at variance with the view taken in the aforesaid Division Bench decisions.

We accordingly refer the following question for decision by a larger Bench:

Whether the High Court may issue Writ, Order or Direction in exercise of its Writ Jurisdiction under Article 226 of the Constitution of India for continuance of Committee of Management of a Co-operative Society even though the term of such Co-operative Society has come to an end in accordance with the provisions of Section 29 of the U.P. Co-operative Societies Act, 1965 ?

Let the papers be placed before the Hon'ble The Acting Chief Justice for appropriate orders.

Order Date :- 14.9.2012

R