State And Ors vs Roop Nagar Dugdh Utpadak S.S. Ltd. ...
2022 Latest Caselaw 7397 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR


                   D.B. Spl. Appl. Writ No. 704/2015

State of Rajasthan through Registrar, Cooperative Department,
Nehru Sahakar Bhawan, 22 Godown, Jaipur

                                                                   ----Appellant

                                    Versus

1. Roop Nagar Dugdh Utpadak Sahakari Samiti Ltd., Jasla,
Panchayat Samiti, Bap, Jodhpur through its Chairman.


2. Paschimi Rajasthan Dugdh Utpadak Sahakari Sangh Ltd.,
Jodhpur through its Managing Director.

                                                                 ----Respondent




For Appellant(s)          :     Mr. Sudheer Tak, AAG assisted by
                                Mr. Saransh Vij
For Respondent(s)         :     Mr. Rajesh Joshi, Senior Advocate
                                assisted by Ms. Kamini Joshi
                                Mr. B.P. Mathur



           HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                              JUDGMENT



Date of pronouncement                   :::             18/05/2022
Order reserved on                       :::             04/05/2022


BY THE COURT : PER HON'BLE MEHTA, J.

1. The instant writ appeal has been preferred by the appellant

Cooperative Department, State of Rajasthan for assailing the

judgment/ final order dated 24.07.2015 passed by the learned

Single Bench of this Court in a bunch of writ petitions led by S.B.

(2 of 10) [SAW-704/2015]

Civil Writ Petition No.7465/2010 (Hari Ram Bishnoi Vs. State of

Rajasthan & Ors.), whereby the learned Single Judge, accepted

the writ petitions and struck down the contentious bye laws

framed by the various District Milk Unions pertaining to elections

of the Board of Directors of the District Milk Unions.

2. Shri Sudheer Tak, learned AAG assisted by Shri Saransh Vij,

Advocate, representing the appellant State of Rajasthan, urged

that the impugned judgment rendered by the learned Single

Bench, is absolutely illegal and without jurisdiction. He urged that

the learned Single Bench relied upon Section 28 of the Rajasthan

Cooperative Societies Act, 2001 (hereinafter referred to as 'the Act

of 2001'), to hold that the questioned bye laws were beyond the

jurisdiction of the rule making power of the District Milk Unions.

He urged that Section 28 is meant for the members of the primary

societies and not for the Cooperative Societies which are members

of another Cooperative Society. He further submitted that the

impugned bye laws are in nature of rights and liabilities being

imposed on primary societies specifically in accordance with

Schedule B appended to the Act of 2001, to be specific sub

clauses Nos.(da), (e), (i) and (w) of clause 1 of the Schedule

which empowers the District Milk Unions to specify the rights and

liabilities of the primary societies. As per Mr. Tak, the bye laws in

question were framed by taking recourse of this rule making

power and are not without jurisdiction as held by learned Single

Bench. On these grounds, Shri Tak vehemently and fervently

implored the Court to accept the appeal and set aside the

impugned judgment.

(3 of 10) [SAW-704/2015]

3. Per Contra, learned Senior Counsel Shri Rajesh Joshi,

assisted by Ms. Kamini Joshi, Advocate, representing the

respondent Roop Nagar Dugdh Utpadak Sahakari Samiti Ltd.

vehemently and fervently opposed the submissions advanced by

Shri Sudheer Tak. He urged that the bye laws are subordinate

legislation and hence, the same cannot supersede the parent

legislation which is Section 28 of the Act of 2001. He urged that

the controversy involved in this appeal is squarely covered by the

judgments rendered by the Division Bench of this Court in the

cases of Devi Chand Vs. State of Rajasthan & Ors. (D.B. Civil

Special Appeal No.161/1995) decided on 02.03.1995 and

Pukh Raj Mehta Vs. State of Rajsthan & Ors. (D.B. Civil

Special Appeal No.162/1995) decided on 02.03.1995. He

thus urged that the appeal does not merit acceptance and should

be dismissed.

4. We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the

impugned order and the material placed on record.

5. The short controversy which this Court is called upon to

decide is whether the view taken by the learned Single Bench in

striking down the questioned bye laws is correct or not. In this

regard, the relevant provisions of the Rajasthan Cooperative

Societies Act are reproduced hereinbelow for the sake of ready

reference :-

                               (4 of 10)                   [SAW-704/2015]


"8. Bye-laws -

(1) Subject to the provisions of this Act and the rules, functions of every co-operative society shall be regulated by a set of bye-laws registered under this Act, the subject matter of which is enclosed as Schedule B; and no amendment therein shall be valid unless such amendment has been registered by the Registrar under the provisions of this Act. (2) An amendment of the by-laws of a co-operative society shall, unless it is expressed to come into operation on a particular day, come into force on the day, on which it is registered.

19. Votes of members -

Every member, other than a nominal and an associate member, of a co-operative society, shall be entitled to cast one vote.

20. Manner of exercising votes -

(1) Every member of a co-operative society shall exercise his vote in person and no member shall be permitted to vote by proxy.

(2) Notwithstanding anything contained in sub-section (1), where-

(a) a co-operative society is a member of another co- operative society, its Chairperson or, in his absence Vice-Chairperson [or an Administrator appointed under this Act] shall, subject to any rules made under this Act, represent to cast vote on its behalf in the affairs of that another society;

(b) the Government or a local authority or a body is a member of a co-operative society, it may nominate a representative to cast vote on its behalf, in the affairs of such society.

                                  (5 of 10)                      [SAW-704/2015]




28.    Disqualification              of      membership             etc.      of
committees-
(1)    No      person      shall,     at     the     same       time,    be    a

Chairperson of more than one apex societies, or more than one central societies.

(2) If a person, on the date of his election or appointment as a chairperson of an apex or a central society as aforesaid, is already a chairperson of another apex or central society, his later election or appointment shall be deemed to be void on the expiry of a period of fourteen days from the above election or appointment, unless he resigns from the chairpersonships of one of the above two apex or two central societies, as the case may be, within such period.

(3) No person shall be eligible for being elected or appointed as a member of a committee or for continuing as member on the committee if he is in default to the society or to any other society, in respect of any loan or loans taken by him for such period as is specified in the bye-laws of the society concerned or in any case for a period exceeding three months:

Provided that this disqualification shall not apply on a member society.

(3-A) Nothwithstanding anything contained in sub- section (3), no person shall be eligible for being elected, co-opted , nominated, or otherwise appointed, or for continuing as a member of the committee of a Central Co-operative Bank or the Apex Co-operative Bank, if he-

                                  (6 of 10)                     [SAW-704/2015]


(i)    represents        a    society        other      than    a   primary

agricultural credit society and such society is in default to such bank, in respect of any loan or loans taken by it for a period exceeding ninety days;

(ii) is a person who is defaulter of a primary agricultural credit society or is a representative of a defaulting primary agricultural credit society for a period exceeding one year unless the default is cleared; and

(iii) is a person, who represents a society whose committee is superseded or has ceased to be a member on the committee of his own society.

(4) No money lender as defined in the Rajasthan Money Lenders Act, 1963 (Act No.1 of 1964) , shall be eligible for being elected or appointed as an officer of a service co- operative society, as classified under the rules, and where an officer of such society as aforesaid starts money lending business, he shall, thereupon, cease to be an officer of such society.

(5) No member of a committee, who has been removed under section 30, shall be eligible for election or appointment as a member of the committee for a period of five years from the date of such removal.

(6) No person against whom an order under Section 57 has been passed, such order not having been set aside, shall be eligible for election or appointment as a member of a committee until the expiry of a period of five years from the date he repays or restores the money or other property or part thereof with interest or pay contribution and costs or compensation in satisfaction of such order.

(7 of 10) [SAW-704/2015]

(7) No person shall remain both a Chairperson of a committee and a member of the Union Council of Ministers or the State Council of Ministers or the Pramukh of a Zila Parishad or the Pradhan of a Panchayat Samiti and, if already a member of the Union Council of Ministers or the State Council of Ministers or Pramukh of a Zila Parishad or Pradhan of a Panchayat Samiti, he shall, at the expiration of a period of fourteen days from the date he becomes a Chairperson of such committee, cease to be such Chairperson of such committee unless, before such expiration, he resigns his seal in the Union Council of Ministers or the State Council of Ministers or the office he holds in the Zila Parishad or the Panchayat Samiti, as the case may be :

Provided that a person who is already a Chairperson of a committee is appointed or elected as a member of the Union Council of Ministers or the State Council of Ministers or Pramukh of a Zila Parishad or Pradhan of a Panchayat Samiti, then at the expiration of fourteen days from the date of being appointed or elected as a member of the Union Council of Ministers or the State Council of Ministers or Pramukh of a Zila Parishad or Pradhan of a Panchayat Samiti, as the case may be, he shall cease to be such Chairperson of the committee unless he has previously resigned his seat in the Union Council of Ministers or the State Council of Ministers or the office he holds in the Zila Parishad or the Panchayat Samiti, as the case may be:

Provided further that he may become member of the committee or a Director.

(8) No person shall be eligible for election as a member of the Committee if he has more than two children:

Provided that a person having more than two children shall not be disqualified under this sub-section

(8 of 10) [SAW-704/2015]

for so long as the number of children he had on 10.7.1995 does not increase.

Explanation: For the purpose of this sub-section, where the couple has only one child from the earlier delivery or deliveries on 10.7.1995 and thereafter, any number of children born out of a single subsequent delivery shall be deemed to be one entity.

(8A) No member of a committee, which has failed to provide the required information or assistance to the State Co-operative Election Authority under Chapter V shall be eligible for election or appointment as a member of the committee for a period of five years from the date of such failure.

(9) Any question as to whether a member of the committee has become subject to any of the disqualifications mentioned under this section or the rules shall be decided by the Election Officer during the process of elections and by the Registrar at all other times." (emphasis supplied) "

6. Apparently, the only provision, which gives power to frame

bye laws is Section 8 of the Act of 2001. A bare perusal of the said

provision, makes it clear that the bye laws shall be framed for

subject matters which are enclosed as Schedule-B, which does not

deal with any situation governing elections. The right to exercise

franchise is a fundamental right and cannot be taken away except

by express provision of law. Sections 19, 20 and 28 of the Act of

2001 are the only provisions of the parent legislation i.e. the Act

of 2001, which deal with matters pertaining to elections. These

provisions do not empower any milk union or a primary society to

(9 of 10) [SAW-704/2015]

frame bye laws dealing with the procedure of elections, what to

say of imposing disqualifications to participate or to vote therein.

7. It is a well settled position of law that a subordinate

legislation cannot supersede a parent legislation. In exercise of

bye law making power, a Cooperative Society cannot make bye

laws in respect of the matters beyond those incorporated in

Schedule B appended to the Act of 2001. A Cooperative Society is

precluded from making stipulations through bye laws in respect of

subjects which are to be exclusively dealt with by the State

Government in exercise of its rule making power under Section

123 of the Act of 2001.

8. By a plain reading of Schedule-B, it comes to fore that a

Cooperative Society is not empowered to frame any bye law

pertaining to qualification or disqualification of a Cooperative

Society and thus, the impugned bye laws do not stand to scrutiny

because they were framed by the Milk Union which has no

jurisdiction to act in this manner. Learned Single Judge considered

the import of the Supreme Court Judgment in the case of Babaji

Kondaji Garad Vs. Nasik Merchants Co-operative bank Ltd.

& Ors. reported in (1984)2 SCC 50 wherein, it has been held

that bye laws of the Cooperative Society can have the status of

Articles of Association of a company and do not have force of law.

9. In this background, apparently, the disqualification

prescribed under bye laws Nos.20.1 (2), 20.2 (7) and 20.2 (9)

were rightly struck down by the learned Single Bench as being

(10 of 10) [SAW-704/2015]

beyond the scope of the bye law making power of the Cooperative

Societies. The impugned judgment dated 24.07.2015 does not

suffer from any infirmity whatsoever warranting interference

therein.

10. As a consequence, the instant writ appeal fails and is

dismissed as being devoid of merit.

11. No order as to costs.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J

Devesh/ Pramod/-

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