Bombay High Court
The Akola District Central ... vs The State Of Maha., Through Its ... on 5 August, 2016
Bench: B.P. Dharmadhikari
1 jg.wp4951.15.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 4951 OF 2015
The Akola District Central Co-operative
Bank Limited, Civil Lines, Akola
through its Chief Officer Shri Prashant
Narayanrao Ukande, Aged about 49
years, Resident of Akola, Tahsil and
District Akola. ... Petitioner
// VERSUS //
(1) The State of Maharashtra
through its Secretary,
Department of Cooperation and Textile,
Mantralaya, Madam Cama Road,
Mumbai - 400 032.
(2) The Commissioner and Registrar of
Co-operative Societies, Maharashtra
State, Pune.
(3) District Deputy Registrar,
Co-operative Societies, Akola,
having its office at Sahkar Sankul,
Behind Nagar Parishad School,
Aadarsh Colony, Akola.
(4) Divisional Joint Registrar,
Co-operative Societies, Amravati
Division, Amravati.
(5) Shri Vinod Bhujangrao Hingankar,
Occupation - Service, Resident of
Kalwadi, Tahsil Akot, District Akola. ... Respondents
-------------------------------------------------------------------------------------------------------
Shri A. A. Naik, Advocate for the petitioner
Shri N. R. Patil, AGP for the respondent nos. 1 to 4
Shri N. B. Jawade, Advocate for the respondent no. 5
-------------------------------------------------------------------------------------------------------------------------------
::: Uploaded on - 09/08/2016 ::: Downloaded on - 11/08/2016 00:03:19 :::
2 jg.wp4951.15.odt
CORAM : B. P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
DATE : 5-8-2016.
ORAL ORDER (Per : B. P. Dharmadhikari, J.)
In the petition filed under Article 226 of the Constitution of
India, the petitioner-District Central Co-operative Bank questions use of
section 69B of the Maharashtra Cooperative Societies Act, 1960 by
respondents with submission that as Section 69A has been deleted by the
Maharashtra Co-operative Societies Amendment Act of 2013, Section 69B
cannot survive. The submission is, Section 69A is soul, while Section 69B
contains machinery surrounding it.
2. It will be appropriate to note that this is second writ petition
filed by the petitioner. Earlier Writ Petition No.3012/2014 filed by
petitioner was decided along with Writ Petition No.596/2014 filed by
Vinod Bhujangrao Hingankar. Said Vinod is respondent no.5 in the
present petition.
3. In Writ Petition Nos.596/2014 and 3012/2014, the
controversy was whether Chairman of petitioner-District Central Co-
operative Central Bank Limited can be an ex officio President of District
Level Committee formed in terms of the Government Resolution dated
3 jg.wp4951.15.odt
01-12-2008 read with subsequent order dated 23-12-2008. Respondent
no.5-Vinod in that writ petition was aggrieved by order dated 15-12-2012
passed by the Minister of State for Cooperation and, therefore, had
approached this Court. The present petitioner asserts that its Chairman
must be the President of District Level Committee. The order was about
2½ years old and, hence, the parties were directed to file their respective
submissions before the Hon'ble Minister and the Hon'ble Minister was
expected to take fresh decision within six weeks. That decision has been
taken on 24-07-2015. Aggrieved by that decision, the present petition has
been filed. Hon'ble Minister accepted grievance of respondent no.5-Vinod
and directed District Deputy Registrar, Cooperative Societies Akola
(present respondent no.3) to assume charge of District Level Committee.
This Court while issuing notice in the matter on 25-08-2015, directed the
parties to maintain status quo.
4. Shri Naik, learned Counsel appearing for petitioner has
submitted that after parties were relegated to the forum before the Hon'ble
Minister, notice of hearing dated 30-06-2015 came to be issued and matter
was taken on 08-07-2015. On 08-07-2015, petitioner sought adjournment
and accordingly application was moved. The representative of petitioner
was given to understand that date will be communicated in due course, but
4 jg.wp4951.15.odt
without passing any order on adjournment application, matter came to be
decided. He submits that petitioner got knowledge of order dated
24-07-2015 afterwards. He also states that finding in impugned order that
petitioner was heard is factually incorrect and invites our attention to
specific assertion in this respect in paragraph 24 of the writ petition. He
also points out that this factual assertion has not been specifically traversed
by the respondent. Inviting our attention to the chronology in which
Sections 69A and 69B came on statute book, he submits that Section 69B
was inserted in 2008 and coexisted with Section 69A till 14-02-2013, when
later was deleted. He, therefore, states that Section 69A was in force for
several years and all powers including power to regulate pay scales and
other service conditions could be read only into Section 69A. Section 69B
only conferred consequential or ancillary powers and after removal of
Section 69A, since main powers or its source is lost, ancillary or
consequential orders cannot be passed. He submits that, therefore, neither
State Level Committee nor District Level Committee can be formed under
Government Resolution dated 01-12-2008. He contends that because of
deletion of Section 69A, Government Resolution 01-12-2008 is itself wiped
out. Our attention is invited Ground (F) in the writ petition to demonstrate
the prejudice caused to petitioner because of high handedness of District
Level Committee insofar as petitioner is concerned.
5 jg.wp4951.15.odt
5. Affidavit filed by respondent nos.1 to 4 on 16-10-2015 is also
relied upon by him to show that there only justification for continuing
Section 69B or its role is need to regulate services and wages of existing
7318 Group Secretaries. According to him, this exercise was possible only
under Section 69A and 69B cannot be used for that purpose. Section 69A
cannot be read into Section 69B and cannot be, therefore, indirectly
treated as available through Section 69B. The judgment of Hon'ble Apex
Court in T. Sham Bhat vs. Union of India and another reported at 1994
Supp (3) SCC 340, particularly paragraph 21 is pressed into service to
demonstrate how in similar situation when many or substantive provisions
were found obliterated, the Hon'ble Apex Court has held that machinery
provisions cease to exist. The judgment of Hon'ble Apex Court
(Constitution Bench) in State of W.B. vs. Kesoram Industries Ltd. and
others reported at (2004) 10 SCC 201, particularly paragraph 138 is
relied upon to submit how in such situation, Courts have to interpret the
statutory provisions.
6. Shri Patil, learned A.G.P. in reply points out Section 69A was
introduced in the Maharashtra Cooperative Societies Act way back in 1975
and since then the concept of Group Secretaries is legally recognized. He
also mentions that Group Secretaries existed even prior thereto, but then
6 jg.wp4951.15.odt
was not in position to substantiate the said contention in absence of
necessary affidavit or document on record. He points out that in 2008,
when Section 69B was added, in one sub-section i.e. sub-section 7 came to
be added to Section 69A. As cadre of Group Secretaries is already created
and about 7318 Group Secretaries are in that cadre, though the provisions
of Section 69A have been deleted, cadre itself could not have been done
away with. He is relying upon the previsions of Section 7(c) of the
Bombay General Clauses Act to support his contention that obligation
already incurred or rights of the parties created are protected though
Section 69A may have been deleted. To explain how amendment to a
statute which results in deletion of a particular provision needs to be
construed he is drawing support from observations of the Apex Court in
paragraphs 17 and 18 of its judgment in Bhagat Ram Sharma vs. Union
of India and others reported at 1988 (Supp) SCC 30.
7. The functions of District Level Committee prescribed in
Government Resolution dated 01-12-2008 are read out by him with
submission that as large number of Group Secretaries exist, these functions
need to be performed.
8. In brief reply, Shri Naik, learned Counsel for petitioner
submitted that efforts of respondents are to explain the need for and scope
7 jg.wp4951.15.odt
of power available to them under Section 69B. Said powers can never
travel to and cover within itself the powers exercisable under Section 69A.
He, therefore, adds that in the wake of deletion of Section 69A, Section
69B cannot stand independently and must be also declared as deleted.
9. Perusal of judgment of Hon'ble Apex Court in the case of
State of W.B. Vs. Kesoram Industries Ltd. and others reported at (2004)
10 SCC 201, paragraph 138 reveals that words used by legislature in a
statute need to be understood by keeping in mind the fact that selection
thereof is with due deliberation and to give its effect to its intention. Each
word therefore, must be given its due meaning. If in definition clause,
such words have been given any meaning that meaning or otherwise their
ordinary meaning by referring to dictionaries, therefore, must be gathered.
Interpretation which avoids conflict between two fields of legislation and
would achieve homogeneity needs to be preferred. Object of the scheme
of law should also be kept in mind.
10. Perusal of judgment of Hon'ble Apex Court in the case of T.
Sham Bhat Vs. Union of India and anr. reported at 1994 Supp (3) SCC
340 {TC "13331"}, paragraph 21 reveals that there, Hon'ble Apex Court
has considered amending clause of IAS Second Amendment Regulations.
In earlier paragraphs, it concluded that Regulation 2 thereof violated
8 jg.wp4951.15.odt
Article 14 and 16 of the Constitution of India. It found that Regulation 2
constituted soul of these Regulations, provided for eligibility of non-State
Civil Service officers, for their selection to the Indian Administrative
Service. Other provisions contained in said Regulation are found to be
machinery provisions intended to implement the said Regulation no. 2.
Hon'ble Apex Court, therefore, found that those Regulations could not
have existed independent of Regulation no. 2.
11. In the case of Bhagat Ram Sharma Vs. Union of India and
ors. reported at 1988 (Supp) SCC 30, in paragraph nos. 17 and 18,
Hon'ble Apex Court has taken note of legislative practice that while
deleting existing provision, new provision is substituted. It found that this
has the effect of repeal of the existing provision and introduction of a new
provision. It has then concluded that there is no real distinction between
'repeal' and an 'amendment'. It has found that amendment is a wider term
including abrogation or deletion of a provision in an existing statute. If the
amendment of the existing law is small, the Act professes to amend, if it is
extensive, it repeals a law and re-enacts it.
12. In present matter, Section 69A has been deleted while Section
69B continues to be in statute book. We have to examine whether Section
69B can be construed as a machinery provision and, therefore, it cannot
9 jg.wp4951.15.odt
stand by itself i.e. because of repeal of Section 69A, it must be presumed to
be repealed. Section 69A constitutes a Co-operative State Cadre of
Secretaries of primary agricultural credit societies, multi-purpose co-
operative societies and service co-operative societies. This cadre has been
referred to as Co-operative State Cadre. Cadre consists of persons
recruited for this purpose by Central Societies to be notified by the State
Government. Number of persons to be recruited, their conditions of
service are to be determined by the Central Societies only. Thus, a cadre
of Group Secretaries has been brought into effect by Section 69A(1). By
sub-section (2), Central Society has been empowered to depute persons
appointed by it to that cadre to work under any of the societies. Vide
sub-section (2A), the immediate supervisory control of such Group
Secretaries is with Taluka Supervision Society consisting of the societies in
each respective Taluka to which such Group Secretaries are deputed. Vide
sub-section (3), a fund has been established by name "the Co-operative
State Cadre Employment Fund". There is a deeming fiction and its
creation has been made effective from 1 st day of July, 1973. Salaries and
expenses of Group Secretaries are to be defrayed through this fund. As per
sub-section (4), societies deriving benefits directly or indirectly from the
services of Group Secretaries or then any other body corporate deriving
such benefits, have to contribute annually to the above mentioned fund a
10 jg.wp4951.15.odt
specified sum from 1st day of July, 1977. Under sub-section (5), there is a
provision for recovery of such contribution. Sub-section (6) enables State
Government to make rules regulating all matters connected with or
ancillary to the custody and maintenance of, the payment of moneys into,
and the expenditure and withdrawal of moneys from said Co-operative
State Cadre Employment Fund. Sub-section (7) introduced later on
exempts co-operative credit structure entity from operation of Section 69A.
Co-operative credit structure entity has been defined in Section 2 of the
Maharashtra Co-operative Societies Act and for present purpose, it is not
necessary for us to look into that definition. Section 69B is for constitution
of District and State Level Committees. The State Government has been
empowered to constitute District Level Committees and State Level
Committee from time to time as and when it felt necessary for solving the
problems of Group Secretaries in the State. Thus, problems faced by
Group Secretaries were to be solved by such Committees and State
Government has been empowered to form such Committees as and when
occasion, therefore, was felt.
13. When Sections 69A and 69B are read together, it is seen that
both occupied different fields. The salaries and other expenses and service
conditions are to be provided for under Section 69A and for resolving
11 jg.wp4951.15.odt
problems faced by Group Secretaries, it is open to State Government to
constitute Committees as specified in Section 69B. The said Committee
under Section 69B, therefore, cannot and could not prescribed service
conditions. Both provisions, while existing together, were complimentary
to each other. But then the scope or nature of problems faced by Group
Secretaries can not be determined with reference to Section 69A only.
14.
It is not in dispute and State Government has placed on record
in its reply the fact that when Section 69A was deleted in 2013, in cadre of
Group Secretaries, 7318 Group Secretaries existed. The State Government
has stated that to solve the problems of these 7318 Group Secretaries,
arrangement under Section 69B is needed and, therefore, State
Government felt that said arrangement should continue till retirement of
all existing Group Secretaries. It is further specified that State Government
would take decision about fate of Section 69B at appropriate juncture.
15. Section 69A as mentioned supra, therefore, constitutes a Co-
operative State Cadre Employment Fund from 1-7-1973 i.e.
retrospectively. The co-operative societies and even body corporates have
been asked to contribute to said fund from 1-7-1977. For the purposes of
this provision, such corporate body though not a corporate society has
been subjected to the provisions of the Maharashtra Co-operative Societies
12 jg.wp4951.15.odt
Act. Taluka Supervision Societies have also been brought into life by it.
These provisions, therefore, show that a permanent arrangement was
envisaged by Section 69A and it was accomplished by providing a cadre of
Group Secretaries for recruitment thereto and for regulating their service
conditions. The immediate control and supervision of such Group
Secretaries working with various societies was entrusted to Taluka
Supervision Society. Such Taluka Supervision Society is to consist of
societies in each respective Taluka to which Group Secretaries are deputed
and such societies taking benefit are the members of Taluka Supervision
Society. Taluka Supervision society was to be registered for this purpose.
Hence, Section 69A (2A) also formed Taluka Supervision Societies for
supervising work of Group Secretaries deputed to its member societies. At
this stage, it is brought to notice of this Court that in exercise of powers
under sub-section (1) of Section 69A, State Government has later in 1987
prescribed Taluka Supervision Society to be a Central Society for the
purpose of sub-section (1) and (2) thereof. It is to be noted that a Co-
operative Society therefore, by name, Taluka Supervision Society has been
brought into existence by Section 69A (2A) in each Taluka in State of
Maharashtra. Thus Group Secretaries recruited thereto and Taluka
Supervision Societies registered for supervising their work continue though
Section 69A has been deleted. Similarly, the fund created under sub-
13 jg.wp4951.15.odt
section (3) of Section 69A also continues. Petitioner do not demonstrate
that these Taluka Societies or their fund as the cadre have ceased to exist.
16. Net result, therefore, is the arrangement as in force because of
Section 69A has to continue for 7318 Group Secretaries. There cannot be
new recruitment and the cadre of Group Secretaries, therefore, becomes a
dying cadre. The State Government has, therefore, correctly stated that in
the backdrop of this situation, through Section 69B, it has to take care of
that cadre till retirement of existing Group Secretaries.
17. The problems of Group Secretaries envisaged in Section 69B
need to be understood in the light of scheme of Section 69A when both
provisions existed together. Their service conditions or other factors taken
care of in Section 69A could not have been altered under Section 69B.
However, situation changes when Section 69A is omitted from statute. As
noted supra, certain irreversible events have occurred under Section 69A
and those have to continue till retirement of last Group Secretary. Section
69B is, therefore, retained in statute book to meet this situation i.e.
problems of existing Group Secretaries after it has become a dying cadre.
The State Government may also take other appropriate steps, legislative or
otherwise, to resolve the situation. But decision of legislature to maintain
Section 69B in statute book can not be faulted with. Deletion of Section
14 jg.wp4951.15.odt
69A all the more justifies insistence of respondents on its presence.
Problem of Group Secretaries emerging under Section 69A may surface
with more rigour in its absence. Contention of non-application of mind by
a legislature body is not substantiated here. Precedents cited by the
parties do not have any bearing on this aspect. Challenge to order of
minister is given up by the petitioner.
18.
Legislative wisdom can be judicially examined by this Court
only in very limited contingencies. Here no such case is made out. We
therefore, find that contention that Section 69B is only a machinery
provision is unsustainable. No case is, therefore, made out warranting
interference. Writ petition is dismissed.
Rule is discharged.
JUDGE JUDGE
waghmare-wasnik
CERTIFICATE
"I certify that this Judgment uploaded is a true and correct copy of
original singed Judgment."
Uploaded by : Shri A. Y. Wasnik, P.A. Uploaded on : 9-8-2016
