Jharkhand High Court
Keska Rajabhitha Primary ... vs State Of Jharkhand on 2 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.68 of 2014
----
1. Keska Rajabhitha Primary Agricultural Cooperative
Society [PACS], through its Chairman Md. Abdul Ansari,
son of Md. Abbash Ansari, Resident of Village : Kadaya,
Post Office: Keska, Police Station; Tundi, District :
Dhanbad.
2. Tundi Primary Agricultural Cooperative Society [PACS],
through its Chairman Nand Kishore Savarnkar, S/o Late
Sadanand Sonar, At-Village : Tundi, Post Office : tundi,
Police Station : Tundi, District : Dhanbad.
... ... Appellants/Petitioners
Versus
1. State of Jharkhand, represented through Secretary,
Department of Cooperative, State of Jharkhand, 4th Floor of
Project Building, Dhurwa, Post Office : Dhurwa, Police
Station : Jagarnathpur, Ranchi, Jharkhand.
2. Registrar, Jharkhand Cooperatives Societies, 2nd Floor of
Engineers Hostel No.2, Near Golchakra, Dhurwa, Post
Office : Dhurwa, Police Station : Jagarnathpur, Ranchi,
Jharkhand.
3. Administrator-cum-Deputy Commissioner, the Dhanbad
Central Cooperative Bank Limited, Post Office : Dhanbad,
Police Station : Dhanbad, District : Dhanbad.
4. National Bank for Agriculture and Rural Development,
[NABARD] through its Assistant General Manager,
Karamtoli Road, Opposite : Adivasi College Hostel, Post
Office : Ranchi, Police Station : Ranchi, District : Ranchi,
Jharkhand.
5. The Dhanbad Central Cooperative Bank Ltd., Dhanbad
(Jharkhand) represented by its Managing Director, Post
Office & Police Station : Dhanbad, District : Dhanbad.
6. Fazal Karim, Manager
7. Kamlesh Kuamr, Manager
8. Kamal Kishore Nag, Assistant Manager
9. Pramod Kumar, Assistant Manager
10. Manohar Lal, Assistant Manager
11. Mirtunjaya Sah, Assistant Manager
12. Sujit Kumar, Assistant Manager
13. Tribhuvan Prasad Singh, Assistant Manager
14. Rajiv Kumar Singh, Assistant Manager
15. Ram Kumar Singh, Assistant Manager
2
16. Nilesh Kumar Verma, Assistant Manager
17. Kamlesh Kumar Pandey, Assistant Manager
18. Pushkar Bhagat, Assistant Manager
19. Smriti Kumari, Assistant Manager
20. Akhchaya Raghubanshi, Bank Assistant
21. Ashit Anupam Anand, Bank Assistant
22. Ramesh Das, Bank Assistant
23. Chandan Kumar Paswan, Bank Assistant
24. Deleted
25. Pravin Kumar, Bank Assistant
26. Deleted
Respondent Nos. 6 to 26 all sons of not known to
the appellants, all resident of C/o Managing
Director, Dhanbad Central Cooperative Bank
Limited, Post Office : Dhanbad [GPO], Police Station
: Dhanbad, District : Dhanbad.
27. Prakash Ranjan Pathak
28. Jitendra Kumar Viswakarma
Both sons of not known to the appellants, all
resident of C/o Managing Director, Dhanbad
Central Cooperative Bank Limited, Post Office :
Dhanbad [GPO], Police Station : Dhanbad, District :
Dhanbad.
... ... Respondents/Respondents
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CORAM :HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellants : Mr. V.P.Singh, Senior Advocate
Mr. Arpit Kumar, Advocate
Mr. Kumar Nishant, Advocate
For the respondents : Mrs. Vandana Singh, Advocate
For the Resp. No.5 : Mr. Krishna Murari, Advocate
For the Resp. Nos. : Mrs. Aparajita Bhardwaj, Advocate
6 to 9, 11,12,13, 20, Mr. Kushal Kumar, Advocate
23, 27 & 28
--------
C.A.V. on 11.07.2023 Pronounced on 02.08.2023
Per Sujit Narayan Prasad, J.
The instant appeal preferred under Clause 10 of the
Letters Patent is directed against the order/judgment dated
26.11.2013 passed by learned Single Judge of this Court in
W.P.(S) No.6214 of 2012 and batch cases by which the writ
petitions have been dismissed by holding therein that the
Registrar acting on behalf of the State Government has the
power to issue the impugned advertisement.
2. The brief facts of the case, as per the pleadings
made in the writ proceeding, which are required to be
enumerated, reads hereunder as :-
2.1 The appellants are Short Term Cooperative Credit
Societies registered under Cooperative Societies Act, 1935
and is being governed by the Jharkhand Cooperative
Societies Act, 1935 as also by the Jharkhand Cooperative
Societies Rules, 1959. It is also governed, inter alia by its
own registered Bye-Laws duly registered under the Office of
Registrar, Cooperative Societies, Department of
Cooperation, Ranchi, Jharkhand.
2.2 The appellants have their own respective General
Bodies which consists of all its share-holder having share
in the Society / PACS and the said General Bodies happen
to be the highest body in so far as taking, inter alia, policy
decisions pertaining to the respective Society / PACS.
2.3 In order to manage the affairs of the aforesaid
societies the respective General Bodies of the appellants
elect and constitute Managing Committees by a process of
election held in accordance with the provisions of the Act,
Rules and its Bye-laws.
2.4 The Short Term Cooperative Credit Structure
Societies in the State of Bihar are classified under three tier
system, inter alia, in terms of their area of operation and
are inter connected with each other in the following
manner:-
(i) In the 1st tier the Primary Cooperative Societies
which function at the grass root village level having an area
of operation covering about 2/3 'Gram Panchayats' or part
thereof.
(ii) In the 2nd tier the Cooperative Credit Societies which
are referred to as the Central / Intermediate level Societies,
exist one in each District and function at the district level
having its area of operation covering the entire District and
have the status of Cooperative Banks known as the District
Central Cooperative Banks. The Central Societies, i.e. the
District Central Cooperative Banks are in turn affiliated to
the Apex Societies of the State which happens to be the
State Cooperative Bank falling in the 3rd tier.
(iii) In the 3rd tier the Cooperative Credit Society in the form
of the State Cooperative Bank which happens to be the
Apex Societies of the State having an area of operation
covering the entire State. It has a General Body of its own
which is its Policy Making Body and which consists of all
Central Societies within the State which are its Share
Holder / Members and are affiliated to it.
2.5 The Dhanbad Central Cooperative Bank Limited,
Dhanbad is a Short Term Cooperative Credit Society and it
also functions as a Cooperative Bank, under the Banking
Licence issued to it by the Reserve Bank of India. The
appellant Nos.1 and 2 are the Shareholders of the Dhanbad
Central Cooperative Bank Ltd. Dhanbad, and by virtue of
the same, are members of its General Body.
2.6 The representatives of the appellant No.1 & 2 and
the representative of other similar Primary Cooperative
Societies within the District of Dhanbad, happen to be the
Share Holder of the DCC Bank, Dhanbad and together by a
process of election, legally constitute the Managing
Committee of the DCC Bank, Dhanbad which in turn is
responsible for managing the affairs of the said Bank.
2.7 The State Government machinery which is
responsible for holding election for constitution of a new
Managing Committee after the term of the outgoing
Managing Committee ends, willfully defaulted in holding
such election and consequently the democratic
management of DCC Bank superseded after 31st December
2006 and it still continues to be under supersession. In
similar situations, the District Central Cooperative Banks
in other District of the State have been put under
supersession and the machinery of the State Government
willfully is not discharging its duty to organize election in
order to constitute and restore democratically elected
Managing Committees rather, on the contrary, are
governing the Institutions by proxy through Administrators,
who are Government Officers, having little time to spare for
the growth of the Cooperative Society.
2.8 The last Managing Committee of the DCC Bank,
Dhanbad completed its 3 years term in office on
31.03.2006 and since no elections were held thereafter for
constitution of a new Managing Committee, hence an
Administrator was appointed to manage the day to day
affairs of the Bank by the then Registrar vide his Memo
No.9 dated 04.01.2007.
2.9 The Registrar, Cooperative Societies issued Letters
as contained in Memo No.579 dated 26.03.2011 and Memo
No.2709 / Ranchi dated 13.12.2011, whereby he has
specified that in view of the recommendations of the
"Vaidianathan Committee" it is the Managing Committee of
the Cooperative Society which is competent to prepare and
implement Human Resources Policy for itself and is also
competent under Section 44 AV (2) (iv) of the Amended Act
to take decisions with regard to Personnel Policy, Staffing,
recruitment, posting and compensation to staff.
2.10 It is the case of the appellants that the Cooperative
Societies have fully been empowered as the only authority
competent to take appropriate decisions in the matters
pertaining to determining Human Resources Policy and in
matters pertaining to recruitments, etc. in their respective
Cooperative Societies but despite the same and in utter
violation to the said legal provisions, the Registrar,
Cooperative Societies acting on behalf of the Government of
Jharkhand, Department of Cooperative has got published
an advertisement in Hindi Daily Newspaper "Dainik
Jagaran" in the edition published on 23.09.2012 inviting
online applications for direct recruitment on various posts
in all the eight Districts Central Cooperative Banks within
the State of Jharkhand, including the Dhanbad Central
Cooperative Bank Limited, Dhanbad as also in the newly
formed the Jharkhand State Cooperative Bank which has
started functioning from the 1st of September 2012.
2.11 Being aggrieved with publication of advertisement,
writ petition was filed which has been dismissed against
which the present appeal has been preferred.
3. It appears from the pleading made hereinabove that
the petitioners are Short Term Cooperative Credit Society
registered under the Cooperative Societies Act and are
governed by the Jharkhand Cooperative Societies Act, 1935
and the Rules framed thereunder. The petitioners have
their own Byelaws and they have their own respective
General Bodies which take policy decisions.
3.1 The Short Term Cooperative Credit Societies operate
in three tiers. The 1st tier being Primary Cooperative
Societies function at the grass root village level. The 2nd tier
refers to the Central/Intermediate Level Societies which
exist in each District and have the status of Cooperative
Banks known as the District Central Cooperative Banks.
The District Central Cooperative Banks are affiliated to the
State Cooperative Bank which is the Apex Society in the
State and which is the 3rd tier, in the Short Term
Cooperative Credit Structure Societies.
3.2 The Dhanbad Central Cooperative Bank Limited,
Dhanbad is a Short Term Cooperative Credit Society and it
also functions as a Cooperative Bank under a banking
licence issued by the Reserve Bank of India. The Dhanbad
Central Cooperative Bank is a District Level
Intermediate/Central Society. The appellants of this case,
namely, Keska Rajabhitha Primary Agricultural Cooperative
Society [PACS] and the Tundi Primary Agricultural
Cooperative Society [PACS], the appellant nos. 1 and 2 in
W. P. (S) No. 6214 of 2012 are the shareholders of the
Dhanbad Central Cooperative Bank Limited and they are
the members of its General Body. The Managing Committee
of the Dhanbad Central Cooperative Bank, Dhanbad
completed its three years' term on 31.03.2006.
3.3 Since no election was held thereafter, it was
superseded on 31.12.2006 and an Administrator was
appointed by order dated 04.01.2007. An advertisement
was issued by the Registrar, Cooperative Societies on
23.09.2012 inviting online applications for appointment on
various posts. The said advertisement was challenged by
filing writ petition being W.P.(S) No.6214 of 2012 along with
other writ petitions questioning the authority of the
Registrar in issuance of the advertisement for fulfilling the
posts.
3.4 Counter affidavit has been filed by the Respondent
Nos. 1 and 2 inter alia stating therein that the State is
empowered to set the recruitment process in motion. The
stand has been taken that in the last 25 - 30 years, the
Management of the Bank never took any step for regular
appointment and all the appointments made were back
door appointments. The stand has also been taken that the
Registrar was having the authority to function on behalf of
the State and having the jurisdiction to fill up the post and
in that view of the matter, if the advertisement was issued,
it cannot be said that the Registrar was having no
jurisdiction.
3.5 The learned Single Judge, on consideration of the
facts, has dismissed the writ petition by holding therein
that the action taken by the Registrar will be construed to
be taken on behalf of the State and, as such, the
advertisement will be said to have been issued by the State
Government, which is the subject matter of the instant
appeal.
4. Mr. V.P.Singh, learned senior counsel, assisted by
Mr. Arpit Kumar, has submitted that the learned Single
Judge has not appreciated the provision as contained
under Section 44 AV (2)(iv) of the Jharkhand Cooperative
Societies (Amendment) Act, 2011 and Article 243 ZL of the
Constitution of India read with Rule 7 of the Service Rules
for the Staff of the Central Cooperative Banks wherein it
has been provided that the Registrar acting on behalf of the
State Government has no power to initiate the process of
recruitment for appointment on various posts in the
Cooperative Bank.
4.1 It has further been submitted that the learned
Single Judge has also not appreciated the letter dated
23/26.11.2005 issued under the signature of the Secretary,
Department of Cooperative to contend that the power of the
Administrator is confined to routine works in the Bank.
4.2 The learned senior counsel, on the aforesaid
premise, has challenged the order passed by the learned
Single Judge.
5. Per contra, Mrs. Vandana Singh, learned counsel
appearing for the respondent State, has defended the
impugned order by taking the plea that the Managing
Committee of the Bank was superseded after 31.12.2006
and therefore, the Government had power and jurisdiction
to make appointment on various posts in the Bank.
5.1 Learned counsel, in the aforesaid premise, has
contended that the order passed by the learned Single
Judge requires no interference.
6. Learned counsel for the newly impleaded
respondents, appointees in terms of the advertisement, has
defended the order passed by the learned Single Judge and
in addition to the aforesaid argument, the further argument
has been advanced that the newly impleaded respondents
since have been appointed in terms of the advertisement
after following the procedure laid down under Article 14
and 16 of the Constitution of India and even if the Registrar
was having no power on the day when the advertisement
was issued which can only be said to be an irregularity and
not illegal appointment since the respondents have been
appointed on the sanctioned posts having eligibility and
after following the procedure as laid down under Article 14
and 16 of the Constitution of India.
6.1 It has further been contended that the respondents
have already rendered about more than 8 years of service
and, as such, at this juncture, their services may not be
dispensed with otherwise for no fault of their own they will
be made to suffer.
7. The matter was heard on various occasions and it
has been pointed out by making reference of the provision
of Sub-Section (6) of Section 14 of the Jharkhand
Cooperative Societies Act, 1935 wherein the statutory
mandate is that the election is to be conducted within the
period of six months from the date of appointment of
Administrator. The State was granted time to seek
instruction on the legal position as also the implication of
the 97th Amendment of the Constitution of India.
7.1 The affidavits have been filed by the State of
Jharkhand wherein the fact about the statutory mandate of
conducting election as per the provision of Section 14(6) of
the Act, 1935 has not been disputed. However, learned
counsel for the State has submitted that even accepting
that the Registrar was having no jurisdiction on the day
when the advertisement was issued, the appointment so
made in terms of the advertisement cannot be said to be
improper since the newly impleaded respondents,
appointees in terms of the advertisement, have been
appointed after following due procedure as laid down under
Article 14 and 16 of the Constitution of India and they are
working since last more than 8 years.
8. We have heard learned counsel for the parties,
perused the documents available on record as also the
finding recorded by the learned Single Judge in the
impugned order.
9. The issues required to be considered by this Court
are :-
(i) As to whether the functioning of the Administrator
beyond the period of six months without any order
of extension can be said to be justified?
(ii) Whether the Registrar of the Cooperative Societies
acting on behalf of the State Government has power
to issue advertisement for filling up the posts?
(iii) Whether the appointment of the newly impleaded
respondents can be said to be improper?
10. This Court is now proceeding to answer the
aforesaid issues one by one.
11. The admitted fact herein is that the Cooperative
Societies, due to non-conducting the election of the
Cooperative Societies, the Body was dissolved by the State
Government with effect from 31.12.2006 and vide order
dated 04.01.2007 the Administrator was appointed.
11.1 The Registrar has taken decision of issuance of
advertisement dated 23.09.2012 by which online
applications were invited for fulfilling the post through
direct recruitment.
11.2 The learned Single Judge, however, has passed an
interim order staying the further proceeding in respect of
the aforesaid advertisement, as would appear from order
dated 01.11.2012. In pursuance to the aforesaid order, the
respondents have restrained themselves to proceed further
in process of selection. However, when the writ petition was
dismissed, then the process of selection was proceeded.
11.3 The intra-court appeal has been filed on 18.02.2014
against the order passed by the learned Single Judge dated
26.11.2013 along with interlocutory application being I.A.
No.1353 of 2014 for stay of that advertisement. However,
no order was passed on the aforesaid interlocutory
application, rather, the same has been rendered to be
infructuous, since, in the meanwhile the process of
selection has already been concluded and offer of
appointment had been issued in favour of the newly
impleaded respondents.
11.4 The appellants, thereafter, has filed a fresh
interlocutory application being I.A. No.3437 of 2014 and
I.A. No.4967 of 2014 seeking therein amendment to be
made in the writ petition by addition of the prayer
regarding the appointments made in favour of the
appointees as also for their impleadment as party
respondents.
11.5 The aforesaid interlocutory application was allowed
vide order dated 04.02.2020 by which the private
respondents have been impleaded and the appointment
letters have been made part of the prayer of the Letters
Patent Appeal.
11.6 Notices have been issued upon the newly impleaded
respondents and in terms thereof, they have appeared
through their counsel.
ISSUE NO. (i) As to whether the functioning of the
Administrator beyond the period of six months without any
order of extension can be said to be justified?
12. Although this is not the issue, as would be evident
from the pleading made in the writ petition, however, the
issue has been framed but not answered by the learned
Single Judge as would appear from the impugned order
and, as such, this Court deems it fit and proper to answer
the said issue and accordingly a separate issue has been
framed as Issue No.(i).
12.1 Section 14 of the Cooperative Societies Act provides
for a Managing Committee and Section 14(3) lays down
powers and functions of an officer deputed in the registered
society. Sub-Section (6) of Section 14 provides that the
Administrator so appointed under Sub-Section (5) shall
hold the election within six months from the date of his
appointment, provided that the State Government, in
special circumstances, after recording the reasons in
writing, may extend the period from time to time but not
exceeding six months at a time, over and above the
prescribed period, for ready reference Section 14(6)(a) is
being quoted herein which reads hereunder as:-
"14. (6)(a) The Administrator so appointed under
sub-section (5) shall hold the elections within six
months of his appointment: Provided that the State
Government, in special circumstances, after
recording the reasons in writing, may extend the
period from time to time, but not exceeding six
months at a time over and above the prescribed
period."
12.2 It is, thus, evident that Section 14(6)(a) stipulates
that the Administrator so appointed in view of provision of
sub-section (5) shall hold the elections within six months of
his appointment and in special circumstances, after
recording the reasons in writing, the State Government may
extend the period from time to time, but not exceeding six
months at a time over and above the prescribed period.
12.3 Admittedly herein, the Administrator was appointed
on supersession of the Managing Committee on 04.01.2007
and, as such, in view of the provision as contained under
Section 14(6)(a) the maximum period of an Administrator to
act as an Administrator will be for a period of six months
from the date of his appointment, however, the same could
have been extended in view of the proviso thereto from time
to time but not exceeding six month at a time over and
above the prescribed period.
12.4 Although the issue of Section 14(6) was not raised
before the learned Single Judge, rather, it has been raised
for the first time in the intra-court appeal stage.
12.5 However, the same being the pure legal question,
therefore, this Court has entertained and the opportunity
was also provided to the learned State counsel to address
the Court on the issue regarding the jurisdiction of the
Administrator during whose administrative control the
advertisement has been issued under the seal and
signature of the Registrar for making appointment, even
though the term of the Administrator has not been
extended after completion of the period of 12 months,
which is maximum as per the provision of Section 14(6) of
the Act, 1935.
12.6 The law is well settled that the legal position if not
raised at the original stage, the same can well be
considered at the appellate stage or at any stage being the
pure legal question as has been held by Hon'ble Apex Court
in the case of Tarini Kamal Pandit v. Prafulla Kumar
Chatterjee, reported in (1979) 3 SCC 280 at paragraph 14
which reads hereunder as :-
14. Before we conclude we will shortly refer to the
question of law raised by Mr L.N. Sinha on behalf of the
defendant. He submitted that as the title in the property
vested in the defendant by confirmation of the court
sale and later by a registered conveyance, the plaintiffs
cannot seek relief on the unregistered agreement Ext. 4
as conveying any title to them. This point was not taken
in any of the courts below but learned counsel
submitted that because it is a pure question of law not
involving any investigation of facts and as it goes to the
root of the matter the court may permit the point to be
taken. In support of his contention that a pure question
of law in the circumstances can be taken for the first
time in this Court he relied on the decisions of this
Court in Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothari [1950 SCC 766], Raja Sri Sailendra
Narayan Bhanja Deo v. State of Orissa [AIR 1956 SC
346] , Seth Badri Prasad v. Seth Nagarmal [AIR 1959 SC
559], State of Uttar Pradesh v. Anand Swarup [(1974) 1
SCC 42] and T.G. Appanda Mudaliar v. State of
Madras [(1976) 4 SCC 821] . As the point raised is a
pure question of law not involving any investigation of
the facts, we permitted the learned counsel to raise the
question.
12.7 Further, in the case of M.J. Exporters (P) Ltd. v.
Union of India & Ors., reported in (2021) 13 SCC 543
the Hon'ble Apex Court has observed that a question of law
could be allowed to be raised even if it was not raised in the
court, for ready reference, paragraph 12 of the aforesaid
judgment is being referred herein which reads hereunder
as:-
"12. No doubt, if the question of law raised in the final
court is a pure question of law and there is no
controversy on facts, which are already on record, and
on the basis of those facts, the question of law can be
determined in the interest of justice, such a question of
law could be allowed to be raised even if it was not
raised in the court."
12.8 Herein, the admitted position is that as per the
provision of Section 14(6)(a) of the Act, 1935, the
Administrator cannot be said to have jurisdiction to
exercise the power of Administrator beyond the period of six
months unless the State Government would have passed
order for extending the period from time to time. But no
such document has been brought on record by the State
extending the period of Administrator to function as an
Administrator of the Cooperative Society.
12.9 The statute since provides the provision of stopgap
arrangement in case of any exigency by appointing
Administrator to be appointed by the State Government
and when the period has been fixed therein the intent is
very much clear that the Cooperative Society may not be
allowed to run by way of stopgap arrangement, rather,
there must be permanent arrangement so that the
Cooperative Society may run smoothly.
13. It is relevant to refer herein section 41 which
stipulates provision for dissolution of Managing Committee.
As per Sub-Section (3) thereof, in a case when a Managing
Committee is dissolved under Sub-Section (1), the Registrar
shall appoint Administrator with such remuneration, for
ready reference Section 41(1) and Section 41(3) are being
quoted hereunder as :-
41. Dissolution of Managing Committee. - (1) If, in
the opinion of the Registrar, the Managing
Committee of any registered society is mismanaging
the affairs of the registered society or has failed to
sufficiently improve the affairs of the registered
society or is persistently making default or is
negligent in the performance of the duties imposed
on it by this Act, the Rules or the bye-laws, he may,
by order in writing after giving the Managing
Committee an opportunity to state its objections, if
any, dissolve the Managing Committee for any period
not exceeding six months and order that all or any of
its members shall be disqualified from being elected
to the Managing Committee of the registered society
for a period to be specified in the order not exceeding
three years: Provided that the Registrar, in special
circumstances, by recording the reasons in writing
and with the prior approval of the State Government,
shall extend the period of dissolution for such further
period as may be considered necessary by the State
Government. Every order of the Registrar under this
sub-section shall state the reasons for which it is
made and shall be communicated by registered post
to the registered society concerned.
(2) ... ... ...
(3) When a Managing Committee is dissolved under
sub-section (1), the Registrar shall appoint an
Administrator on such remuneration, if any, as he
may fix, to carry on the business of the society, and
the Administrator, shall subject to any direction
issued by the Registrar from time to time, exercise all
the powers and perform all the duties which may
under this Act, the rules and the bye-laws, be
exercised or performed by the Managing Committee
or any officer of the registered society: Provided that
the Registrar shall have the power to change the
Administrator during the period of dissolution.
13.1 It also requires to refer herein the letter of the
Secretary, dated 23/26.11.2005 wherein the Administrator,
if appointed after dissolution of the Society, he is
authorized only to do routine works. The relevant extract of
the aforesaid letter is quoted herein which reads hereunder
as :-
"
(क) क क क क क
क कक एक ए
क क
क क क क
क क ए क क गठ क क
(ख) कक क कक ग
, एक क , /
क , ए क क ग
क क क
क क कए कक
क "
13.2 The law is well settled that if a decision is to be
taken as per the statutory command, there cannot be any
deviation as has been held by Hon'ble Apex Court in the
case of State of Uttar Pradesh v. Singhara Singh and
Ors., AIR (1964) SC 358, wherein it has been held at
paragraph 8 as under:-
25. "....its result is that if a statute has conferred a power to
do an act and has laid down the method in which that power
has to be exercised, it necessarily prohibits the doing of the
act in any other manner than that which has been
prescribed. The principle behind the rule is that if this were
not so, the statutory provision might as well not have been
enacted...."
13.3 In the case of Babu Verghese and Ors. v. Bar
Council of Kerala and Ors., (1999) 3 SCC 422, wherein
it has been held at paragraphs 31 & 32 as under:
"31. It is the basic principle of law long settled that if the
manner of doing a particular act is prescribed under any
statute, the act must be done in that manner or not at all.
The origin of this rule is traceable to the decision in Taylor v.
Taylor which was followed by Lord Roche in Nazir Ahmad v.
King Emperor who stated as under:
"Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao
Shiv Bahadur Singh v. State of V.P. and again in Deep
Chand v. State of Rajasthan. These cases were considered by
a three-judge bench of this Court in State of U.P. v. Singhara
Singh and the rule laid down in Nazir Ahmad case was again
upheld. This rule has since been applied to the exercise of
jurisdiction by courts and has also been recognized as a
statutory principle of administrative law."
13.4 In the case of Commissioner of Income Tax,
Mumbai v. Anjum M.H. Ghaswala & Ors., reported in
(2002) 1 SCC 633, wherein it has been held at paragraph
27 as under:
"..... it is a normal rule of consideration that when a statute
vests certain power in an authority to be exercised in a
particular manner then the said authority has to exercise it
only in the manner provided in the statute itself...."
13.5 In the given facts of the case, there is no denial of
the fact that under the provision of Section 41(3) read with
Section 41 (1) that on dissolution of the Managing
Committee, the Registrar can appoint an Administrator for
looking after the business of the Cooperative Society.
Herein, in view of the provision as contained under Sub-
Section (3) of Section 41, the Administrator had been
appointed on dissolution of the Managing Committee due to
the completion of three years term of the Managing
Committee on 31.03.2006.
13.6 The provision of Section 14(6) mandates that the
Administrator so appointed under the provision of Sub-
Section (3) of the Section 41 will be for a maximum period
of six months subject to extension by the State Government
from time to time but not exceeding six months at a time
over and above the prescribed period, meaning thereby, the
maximum period of Administrator after extension if given
by the State Government will be for a period one year.
13.7 However, Section 14(6) of the Act, 1935 has been
deleted by the successor State of Bihar vide the
Amendment Act of 2002.
13.8 This Court has asked the learned State counsel to
seek instruction as to whether the Act, 1935 has been
adopted with deletion of the said provision, the submission
has been made that the said Act has been adopted without
any deletion, since, thereafter the Jharkhand Co-operative
Societies (Amendment) Act, 2011 has come and, as such, it
requires to refer herein the para materia provision as that
of Section 14(6) of the Act, 1935 as contained under
Section 13(a) of the amended Act, 2011 wherein it has been
provided that - "the election to the managing committee of a
Short Term Co-operative Credit Structure Society shall be
conducted before the expiry of term of the existing managing
committee and in case of supersession of managing
committee of such society, the election shall be conducted
within two months from the date of supersession.
Provided that in circumstances beyond control, the State
Government may allow holding of such elections within a
period not exceeding six months from the date of
supersession."
13.9 Herein, the Administrator has been allowed to
function even beyond the period of six months without any
extension in this regard by the State Government, rather,
he has been allowed to function even beyond the period of
one year. The functioning of the Administrator beyond the
mandate of Section 14(6), according to our considered view,
cannot be said to be proper.
13.10 Since Section 14(6) of the Act, 1935 or Section 13(a)
of the amended Act, 2011 had not been brought to the
notice of the learned Single Judge, therefore, the
implication of the aforesaid provision could not be made.
But the same, since is the legal position, therefore, this
Court has considered based upon the principle laid down
by Hon'ble Apex Court and in view thereof, this Court is of
the view that the continuation of the Administrator beyond
the period of six months is in the teeth of the provision of
Section 14(6) of the Act, 1935.
14. Accordingly, the Issue No.(i) is hereby answered.
ISSUE No.(ii) - Whether the Registrar of the Cooperative
Societies acting on behalf of the State Government has
power to issue advertisement for filling up the posts?
15. The issue with respect to the power of Registrar of
the Cooperative Societies in issuance of advertisement has
been answered in affirmative by the learned Single Judge in
the impugned order, as would appear from the ultimate
paragraph thereof.
15.1 However, the learned senior counsel has all along
argued that the power of Administrator is not there to issue
advertisement but that is not the case of the appellant as
would appear from the pleading in the writ petition since the
advertisement which was under challenge before the writ
court was issued only by the Registrar, Cooperative Society
and not by the Administrator.
16. The answer of this issue will have impact upon the
Issue No.(iii). If the Issue No.(ii) will be answered in favour of
the appellant, then certainly the propriety of the
appointment which has been made in pursuance to the
advertisement issued by the Registrar, Cooperative
Societies, requires consideration as to whether it is proper
or improper due to want of jurisdiction. Therefore, the Issue
No.(ii) is being discussed first hereinbelow.
17. The contention which has been raised by the
learned senior counsel that there cannot be any interference
in the internal affairs of the cooperative society by the State
and, as such, during the period when the management of
the society was dissolved, the only requirement was to hold
election for an elected body but the Registrar has issued
advertisement for making appointment in order to fill up the
sanctioned posts. But the learned senior counsel has failed
to draw attention of any law in this regard to the effect that
there cannot be any interference by the State during the
period when the management of the society is dissolved.
17.1 This Court further is of the view that merely because
election was not conducted within the statutory period, the
issuance of advertisement by the Registrar, functionary of
the State Government, will be said to be without
jurisdiction. No claim has been made by the society, the
appellant, in the writ petition for seeking a direction for
conducting election. The society was in operation during the
public duty and in order to fill up the sanctioned post
advertisement was issued by the Registrar taking into
consideration the requirement of engagement.
17.2 This Court has posed a pinpointed query upon the
learned counsel appearing for the appellant as to whether
any statutory mandate is there which prohibits the
functionary of the State Government to make any
appointment during the period with the managing
committee of the society has been dissolved.
17.3 Learned senior counsel was fair enough to submit
that there is no statutory provision, however, he has made
reference of 97th amendment of the Constitution of India.
17.4 This Court, in view of the fact that as per the
submission that there is no statutory provision save and
except the Bar has been created by virtue of 97th
amendment, therefore, deems it fit and proper to deal with
the 97th amendment of the Constitution of India wherein the
principle for amending the Constitution to put a restriction
upon the State in interfering with the affairs of the society.
17.5 But the 97th amendment was questioned before the
Hon'ble Apex Court in the case of Union Of India v.
Rajendra N Shah and Another reported in 2021 SCC
OnLine 474 wherein the Hon'ble Apex Court, by virtue of
the majority of 2 : 1 has been pleased to hold that so far as
the issue of interference is concerned, the same has not
been said to be improper but the consideration has been
given regarding the issue of cooperative societies which are
under the control of the State Government. The Hon'ble
Apex Court has considered the nature of the cooperative
society and by holding therein that Part IX B of the
Constitution of India is operative only insofar as it concerns
the Multi-State Cooperative Societies both within the
various States and in Union Territory of India. But, so far as
the cooperative societies run under the State Government,
has not been approved due to want of ratification by the
State Legislature as required under Article 368(2) of the
Constitution of India, the relevant paragraph of the said
judgment is being referred hereunder as :-
"67. The aforesaid analysis of Part IXB of the
Constitution leads to the result that though Article
246(3) and Entry 32, List II of the 7th Schedule have not
been „changed‟ in letter, yet the impact upon the
aforesaid articles cannot be said to be insignificant. On
the contrary, it is clear that by curtailing the width of
Entry 32, List II of the 7th Schedule, Part IXB seeks to
effect a significant change in Article 246(3) read with
Entry 32 List II of the 7th Schedule inasmuch as the
State's exclusive power to make laws with regard to the
subject of co-operative societies is significantly curtailed
thereby directly impacting the quasi-federal principle
contained therein. Quite clearly, therefore, Part IXB,
insofar as it applies to co-operative societies which
operate within a State, would therefore require
ratification under both sub-clauses (b) and (c) of the
proviso to Article 368(2) of the Constitution of India.
72. Shri Venugopal then argued that 17 out of 28
States had enacted legislations incorporating provisions
of Part IXB, and that, therefore, they had impliedly
accepted the restrictions laid down in the said Part.
This argument need not detain us inasmuch as the
procedure laid down in Article 368(2) proviso requires
ratification of legislatures of one half of the States by
resolutions to that effect. This has admittedly not been
done in the present case. Also, the argument that no
State has come forward to challenge the
97th Constitution Amendment does not take the matter
any further. When a citizen of India challenges a
constitutional amendment as being procedurally infirm,
it is the duty of the court to examine such challenge on
merits as the Constitution of India is a national charter
of governance affecting persons, citizens and
institutions alike.
74. We now come to an important argument made by
Shri Venugopal that even if it be held that Part IXB is
constitutionally infirm qua cooperative societies
operating within a State, it would yet operate qua multi-
State co-operative societies and in Union territories
which are not States.
78. It is clear, therefore, that the Scheme qua multi-
State cooperative societies is separate from the Scheme
dealing with "other cooperative societies", Parliament
being empowered, so far as multi-State cooperative
societies are concerned, and the State legislatures
having to make appropriate laws laying down certain
matters so far as "other cooperative societies" are
concerned. The effect of Article 246ZR is as if multi-
State co-operative societies are separately dealt with in
a separate sub-chapter contained within Part IXB, as is
correctly contended by the learned Attorney General.
Also, there is no doubt that after severance what
survives can and does stand independently and is
workable. It was faintly suggested by learned counsel
for the Respondents that the consequence of this Court
holding that the Constitution 97th Amendment Act is
void for want of ratification would render the entire
amendment still-born, as a result of which no part of
the amendment can survive. We reject this argument for
two reasons. If the doctrine of severability were not to
apply for the afore-stated reason, then the majority
judgment in Kihoto Hollohan (supra) would be incorrect.
This very reasoning would then render the entire
Constitution 52nd Amendment, which inserted the
Tenth Schedule to the Constitution of India,
constitutionally infirm as then the entirety of the
amendment would have to be declared void for want of
ratification, which would be in the teeth of the majority
judgment in Kihoto Hollohan (supra). Further, on this
reasoning, the amendments made in Article 19 and the
addition of Article 43B would also have to be struck
down, which was not pleaded or argued before either
the High Court or before us. This being the case, we
declare that Part IXB of the Constitution of India is
operative insofar as multi-State co-operative societies
are concerned."
17.6 It is, thus, evident from the aforesaid judgment of
the Hon'ble Apex Court, the issue of interference, as the
contention has been raised on behalf of the appellant, that
the State functionary has got no jurisdiction to interfere in
pursuance to the 97th amendment, is the only basis to make
such submission.
17.7 There is no law in this regard and that is the reason
the amendment so warranted in the Constitution of India.
Since part of the issue of interference of the State in the
affairs of the cooperative society under the Cooperative
Society Department is concerned, the issue of autonomy of
the cooperative society as per the mandate of the 97 th
amendment has been held to be invalid due to want of
required ratification and, hence, the argument that there
cannot be any interference of the State in the internal affairs
of the cooperative society in absence of statutory mandate or
the constitutional mandate is having no substance.
17.8 Further no rule has also been formulated by the
State and hence the argument of questioning the
jurisdiction of Registrar, Cooperative Society in issuance of
advertisement, according to our considered view, is also
having no substance.
18. Accordingly, the Issue No.(ii) is answered against the
appellant and accordingly the finding so recorded by the
learned Single Judge in the impugned order is hereby held
to be good law.
ISSUE No.(iii) Whether the appointment of the newly
impleaded respondents can be said to be improper?
19. Since the issue No.(ii) has been answered upholding
the view of the learned Single Judge regarding the
jurisdiction of the Registrar who has issued the
advertisement to be within the jurisdiction and, as such, the
appointment as has been made in pursuance to the
advertisement issued by the Registrar, Cooperative Society
cannot be said to suffer from any illegality due to want of
jurisdiction.
20. Accordingly, the issue No.(iii) is also answered.
21. In the result, the appeal stands dismissed.
22. Interlocutory application, if any, also stands
disposed of.
I agree (Sujit Narayan Prasad, J.)
(Subhash Chand, J.) (Subhash Chand, J.)
Birendra/ A.F.R.
