Orissa High Court
All Odisha State Bank Officers vs State Of Odisha And Others on 30 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 12355 of 2022
All Odisha State Bank Officers ..... Petitioner
Housing Cooperative Society Ltd.
Mr. Prabodha Chandra Nayak, Advocate
-versus-
State of Odisha and others .... Opp. Parties
Mr. Ajodhya Ranjan Dash, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 30.08.2022
3. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this writ petition seeks to assail the judgment
and order dated 20th April, 2022 (Annexure-1) passed by learned
Member, Cooperative Tribunal, Odisha, Bhubaneswar in TA
No.3 of 2021, whereby he confirmed the order dated 17th
February, 2021 (Annexure-11) passed by Registrar, Cooperative
Societies, Odisha ( for short, 'RCSs') pursuant to direction of
this Court dated 3rd July, 2020 passed in W.P.(C) No.13076 of
2017, refusing to amend the Byelaws of the Petitioner-Society
due to lack of quorum.
3. Mr. Nayak, learned counsel submits that the Petitioner-
Society in order to amend its Byelaws with an intention to
continue the membership of retired employees of the State Bank
of India, called a general body meeting. Due notices were served
on the members of the Cooperative Society. On the date of
resolution, 83 members were present and all of them voted for
amendment of the bylaws. Accordingly, a resolution was passed
and the same was placed before RCSs for approval. But, the
// 2 //
same was turn down. Assailing the same, some of the members
of the Petitioner-Society preferred W.P.(C) No.13076 of 2017,
W.P.(C) Nos.19962 of 2017 and W.P.(C) No.502 of 2018. All
these writ petitions were heard analogously and disposed of by a
common judgment dated 3rd July, 2020, with the following
direction.
"20. On cumulative effect of the aforesaid facts coupled
with judicial pronouncement, the impugned order under
Annexure-6 of opposite party no.2, the Registrar,
Cooperative Societies regarding deletion and correction of
the clauses of the Bye-laws under Annexure-6 and order
dated 18.04.2017 passed by the appellate authority in
Appeal No.01 of 2014 under Annexure-8 is quashed and set
aside and the case is remitted to the Registrar, Cooperative
Societies to consider afresh in accordance with law as per
the relevant provisions of the Co-operative Societies Act as
expeditiously as possible preferably within a period of three
months from the date of receipt of the copy of the order."
Accordingly, RCSs considered the matter afresh and rejected the
proposal vide order under Annexure-11 and refused to register
the proposed amendment of Byelaws (Annexure-6) of the
Petitioner-Society for nominal membership and continuance of
the members after their retirement from service. Assailing the
same, Petitioner-Society preferred T.A. No.03 of 2021 before the
Tribunal. Learned Member, Cooperative Tribunal, vide
judgment and order dated 20th April, 2022 (Annexure-1)
dismissed the appeal. Hence, this writ petition has been filed.
4. It is submitted by learned counsel for the Petitioner that
RCSs rejected the proposal of amendment of the Byelaws of the
Society on the ground that required quorum was not available to
pass the resolution for amendment of the bylaws. Rule 14(1) of
the Cooperative Societies Rules, 1965 (for short, 'the Rules')
// 3 //
submits that procedure regarding amendment of bylaws has been
stipulated therein.
"14. Procedure regarding Amendment of Bye-Laws.--
The following procedure has to be adopted in regard to
amendment to the byelaws of a Society:-
(i) Every amendment shall be made only by a
resolution passed by not less than two-thirds of the
members present at a meeting of general body of the
members of the society at which a quorum shall be present;
(ii) No such resolution shall be valid unless due notice
of the proper amendment of the bye-1aws is given in
accordance with the byelaws.
xx xx xx"
He further submits that Rule 28(1) of the said Rules provide
quorum of general body meeting, which reads as follows:-
"28. Quorum of General Meeting- (1) The quorum for a
general meeting shall be as fixed in the bye-laws. No
business shall be transacted at any meeting unless there is
quorum."
Further, the Byelaws of the Petitioner-Society provides that "the
quorum for general body shall be 30 or 1/3rd of the total number
of members on the role at the time whichever is less. No
business shall be transacted at any meeting unless there is a
quorum." He, therefore, submits that when all 83 members, who
were present at the time general body meeting, voted for
amendment of the Byelaws, RCSs could not have denied to
register the same. He further submits that learned Tribunal did
not at all take this aspect into consideration and by merely
recording the rival contentions of the parties passed the
impugned order without recording any reason thereto. He,
therefore, prays for setting aside the orders under Annexures-1
and 11 and to remit the matter to learned Tribunal for
adjudication of the matter afresh.
// 4 //
5. Mr. Dash, learned AGA although submits that while
adjudicating the matter, RCSs did not at all take into
consideration the provision of Rule 14 of the Rules, but the
quorum provided in the Byelaws is not in consonance with the
provisions under the said Rules. When Rule 14(i) clearly
provides that every amendment shall be made only by a
resolution passed by not less than 2/3rd of the members present
in the meeting of the general body of the members of the
Society at which a quorum shall be present, the Byelaws
provides for lesser number of members to be present for
amendment of the Byelaws. Thus, the provision as laid down in
the Byelaws for a quorum is not sustainable in the eyes of law.
In support of his contention, he relied upon the decision in the
case of Veena Kumari Tandon v. Neelam Bhalla, reported in
(2007) 12 SCC 764, wherein it is held as under:-
"11. It is now a well-settled principle of law that a
legislative Act shall prevail over the subordinate legislation. Bye-
laws must, therefore, conform to the provisions of the Act and
cannot act in derogation thereof."
He, however, submits that the matter requires fresh
consideration as learned counsel for the Petitioner submits that
all the 83 members present in general body meeting voted for
amendment of the Byelaws.
6. Upon hearing learned counsel for the parties and on
perusal of relevant provisions of law, it is manifest that for
amendment of Byelaws, a resolution has to be passed by not less
than 2/3rd members present at the meeting of the general body.
Rule 28(1) further clarifies that the quorum of general body
meeting shall be fixed by the Byelaws. Applying the aforesaid
provisions to the case at hand this Court finds all the 83
// 5 //
members present in the general body meeting voted for
amendment of Clauses-6 and 8 (5) of the Byelaws for nominal
membership and continuance of the members after retirement
from service respectively. Although RCSs has referred to Rule
14(i) of the Rules, but has not discussed as to how the provision
of the said Rule is violated in the instant case. Further, on
perusal of the order passed by learned Tribunal, it appears that
there has been neither any discussion of the provisions of law
nor any finding is recorded in support of its conclusion.
7. In that view of the matter, this Court, while setting aside
the order under Annexure-1, remits the matter back to learned
Tribunal to adjudicate the same in accordance with law afresh
giving opportunity of hearing to the parties. Since the
amendment of Byelaws is pending for a considerable period,
learned Tribunal shall do well to make an endeavour to take a
decision in the matter at an early date in accordance with law
giving opportunity of hearing to the parties concerned.
8. With the observation and direction as aforesaid, the writ
petition is disposed of.
Issue urgent certified copy of the order on proper
application.
(K.R. Mohapatra)
Judge
s.s.satapathy
