Sanjay Singh Rana vs State Of Uttarakhand & Others
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Uttarakhand High Court

Sanjay Singh Rana vs State Of Uttarakhand & Others on 6 March, 2024

Author: Manoj Kumar Tiwari

Bench: Manoj Kumar Tiwari

     IN THE HIGH COURT OF UTTARAKHAND

                            AT NAINITAL
             HON'BLE SRI JUSTICE MANOJ KUMAR TIWARI


                           6th MARCH, 2024

              Writ Petition (M/S) No. 2 OF 2024


Sanjay Singh Rana                                     ... Petitioner

                                   Versus

State of Uttarakhand & others                         ... Respondents

                                    With

               Writ Petition (M/S) No. 3343 of 2023
               Writ Petition (M/S) No. 244 of 2024


Counsel for the petitioners
Mr. D.S. Patni, learned Senior Counsel assisted by Mr. Dharmendra Barthwal
Mr. Piyush Garg, Advocate
Mr. C.K. Sharma, Advocate

Counsel for the Respondent
Mr. S.N. Babulkar, learned Advocate General with Mr. C.S. Rawat, learned Chief
Standing Counsel for the State of Uttarakhand.
Mr. Shobhit Saharia, learned counsel for the Cooperative Election Authority
Mr. D.C.S. Rawat, learned counsel for the impleadment applicant

                               JUDGMENT :

1. Since common questions of fact and law are involved in these petitions, therefore, these petitions are clubbed together and are being heard & decided together. However, for the sake of brevity and convenience, facts of WPMS No. 2 of 2024 alone are being considered.

2. By means of this writ petition, petitioner has sought the following reliefs:-

(I) a writ, order or direction in the nature of certiorari quashing the election program dated 20.12.2023 ANNEXURE NO. 2 issued by Respondent No. 5. (II) a writ, order or direction in the nature of mandamus, commanding the respondents to issue a fresh election program for elections in the Central Milk Producing Cooperative Society i.e. Nainital Dugdh Utpadak Sahkari Sangh Ltd., Lalkuan, permitting the Petitioner to participate in the election as a delegate for the primary milk producing cooperative society, Durgapalpur II Motahaldu, Lalkuan.

Or in the alternative.

be pleased to direct the respondent to first conduct a fresh election for Chairman of the each Primary Cooperative Society and then to conduct the election of members of Managing Committee of the Nainital Dugdh Utpadak Sahkari Sangh Ltd., Lalkuan.

3. There is a Primary Milk Cooperative Society known as 'Durgapalpur II Motahaldu, Lalkuan'. Petitioner claims to have been elected as delegate of the said society. The expression 'Delegate of Society' has been defined in Rule 2(v) of Uttarakhand Cooperative Societies Rules, 2004, which is extracted below:

"(v) "Delegate of Society" means an individual appointed in accordance with these rules by members of Committee of Management of a Co-operative Society to represent it in the general body of another Co-operative Society to which such Society is a member;"

4. Petitioner has challenged Office Memo dated 20.12.2023 issued by Secretary, Cooperative Election Authority, Uttarakhand, whereby programme for conducting election to Central Milk Producers Cooperative Society was notified.

5. A Delegate is elected in terms of provision contained in Rule 456 of the aforesaid Rules. State Government amended the aforesaid Rules by Amendment Rules notified on 29.07.2021 (annexed as Annexure No.3 to the writ petition). Sub-rule (2) to Rule 456 was also

amended by the said amendment. Relevant extract of the amendment Rules 2021, is reproduced below:

Amendment of In existing rule 456 of the principal rules- 16 rule 456 (i) for existing sub rule(2) as set out in column 1 below, the rule as set out in column 2 shall be substituted, namely:-

                             Column-1                           Column-2
                            Existing rule             Rule as hereby Substituted
                   Election:      The     Election Election: The Election Officer

Officer shall along with the shall along with the notice and notice and programme of program of election of members election of members of the of the committee of committee of Management Management also intimate that also intimate that date, date program of election of programme of election of Chairman or representative and chairman, vice chairman or also specify the place where delegates and also specify such election shall be held:

the place where such election shall be held. Provided that where any General Body of Milk Producer's Co-operative society is represented by the other Milk Producer Co-operative Society, concerned society shall be represented only through its Chairman.

6. Before its amendment, Rule 456(2) provided simultaneously holding of election of Chairman, Vice Chairman and Delegates with the election of members of Committee of Management. The expression 'Delegates' is now replaced by the expression 'Representative' in Rule 456(2) and a proviso is added providing that, instead of Delegate, a Milk Producer's Co-operative Society shall be represented in other Milk Producer's Cooperative Society only through its Chairman. Thus the right available to Delegate, before amendment, is conferred upon the Chairman.

7. Petitioner contends that before amendment in the Rules, Delegate sent by different Primary Milk Cooperative Societies constituted General Body of the Central Milk Producers Cooperative Society; as he is

elected as Delegate, therefore, his right to participate in the election for constituting Committee of Management of the Central Milk Producers Cooperative Society has to be honoured; the election programme notified by the Cooperative Election Authority does not recognize petitioner's right to participate in the election of Central Milk Producers Cooperative Society, therefore, the election programme be set aside. As second relief, petitioner has sought a direction to the Competent Authority to issue election programme afresh in respect of Central Milk Producers Cooperative Society i.e. Naintial Dugdh Utpadak Sahkari Sangh Ltd., Lalkuan and permit the petitioner to participate in the election as Delegate of a Primary Milk Cooperative Society.

8. It is not in dispute that the election process, challenged by the petitioner, is governed by provisions contained in Uttarakhand Cooperative Societies Rules, 2004, as amended from time-to-time. As stated earlier, after 29.07.2021 a Delegate is not entitled to represent a Primary Milk Cooperative Society in the General Body of Central Milk Producers Cooperative Society and this right is available only to the person who is elected as Chairman of the Primary Milk Cooperative Society. Rules determine who can represent a Primary Society in a Central Society, therefore, after amendment in the Rules, petitioner cannot claim a vested right of participation in the election of Central Society.

9. It is the contention of petitioner that his right to vote in the election for constituting Committee of

Management of Central Milk Producers Cooperative Society as Delegate of a Primary Milk Cooperative Society, cannot be taken away merely by amending Rule 456(2) of the Uttarakhand Cooperative Societies Rules, 2004 when there are other statutory provisions, which confer right to vote upon a Delegate. Reliance is placed upon provision contained in Rule 81(f) of the aforesaid Rules, which provides that a District Cooperative Milk Union/Federation may have 4 delegates in their General Body from each member societies. Reliance is also placed upon Rule 79(1) of the aforesaid Rules, which provides that General Body of Cooperative Society 'excluding agriculture credit cooperative society' shall be constituted by delegates of its members.

10. The submission made on behalf of petitioner is bereft of merit. Rule 81(f) of the aforesaid Rules is an enabling provision which simultaneously imposes ceiling on the number of Delegates, which a Primary Milk Cooperative Society can send to a Central Cooperative Society and it does not confer a right to vote upon the petitioner in the election for reconstituting Committee of Management of Central Cooperative Society. Rule 79 although provides that the General Body of a Cooperative Society (excluding agriculture credit cooperative society) shall be constituted by Delegates of its members, however, after amendment in the Rules, Milk Producers Cooperative Society is treated as a separate class like 'Agriculture Credit Cooperative Society' and the provisions contained in other Rules, which are general in nature, are not applicable to Milk Producers Cooperative Society. In

fact, the provision for election of Delegate contained in Rule 456(2) has been diluted and it is provided that only Chairman will represent his Primary Milk Cooperative Society in the General Body of Central Milk Cooperative Society.

11. Mr. D.S. Patni, learned Senior Counsel for petitioner in WPMS No.3343 of 2023 submits that petitioner in his case was elected after amendment in the Rules of 2004 and the election programme was also issued subsequent to amendment in Rule 456(2) of the Uttarakhand Cooperative Societies Rules, therefore, right of the petitioner to represent the Primary Milk Cooperative Society in the General Body of the Central Society, cannot be taken away.

12. Learned State Counsel submits that after deletion of the expression 'Delegate' from Rule 456(2), petitioner does not have any right to vote in the election held for reconstituting Committee of Management of a Central Milk Cooperative Society, even though he was elected, though wrongly, as Delegate.

13. Mr. S.N. Babulkar, learned Advocate General for the State contends that Rule 79 of the Rules of 2004 is applicable to Cooperative Societies other than Milk Cooperative Society. He submits that Nainital Dugdh Utpadak Sahkari Sangh Ltd., Lalkuan, which is a central society, has more than 400 Primary Milk Cooperative Societies as its member; some Primary Milk Cooperative Societies are having very large number of members;

while, other Primary Milk Cooperative Societies, especially in hill areas, have very few of members. He further submits that, as per the earlier statutory Scheme, number of Delegates, which each Primary Milk Society was sending to Central Milk Cooperative Society, was dependent upon the number of members in the concerned Primary Milk Cooperative Society, due to which Primary Societies with large membership were getting more representation in the General Body of the Central Society; while, societies with less number of members were given lesser representation in the General Body of Central Society, which was causing heartburning and was felt to be inequitable by the State Government.

14. Learned Advocate General submits that such inequitable representation to Primary Cooperative Societies in the General Body of Central Societies, due to difference in number of members, was considered to be a threat to cooperative movement in the State, therefore, a decision was taken at the highest level to amend the Rules, so that each Primary Cooperative Society gets equal representation in the General Body of Central Milk Cooperative Societies. He submits that this decision is applicable to all Milk Cooperative Societies in the State and does not target any particular Society.

15. Petitioner has not challenged validity of the amendment made in Rule 456(2), therefore, this Court is not going into the question of validity of Rules. However, from perusal of Rule 456(2), after its amendment, it reveals that Milk Cooperative Societies have been treated

as a class in itself and special provision has been made for them that such societies shall be represented in the General Body of Central Society only through Chairman and not the Delegates.

16. It is not in dispute that petitioner was elected as Delegate, in terms of provision contained in the Rules of 2004. Whatever right petitioners claim, flows from the provisions contained in the Rules. Rules have undergone a change. Rule 81(f) does not support the contention of petitioner that Delegate cannot be replaced by a Chairman. Since an exception has been carved out in respect of Primary Milk Cooperative Society by Sub-Rule (2) of Rule 456 of the Rules, therefore, petitioners cannot have a vested right to represent Primary Milk Cooperative Society in the General Body of Central Society, even though he was elected as Delegate of the Primary Society.

17. Right to vote is a statutory right. Petitioner claims voting right based on his election as Delegate of a Primary Society. The right, which was earlier available to a Delegate of a Primary Milk Cooperative Society, has been taken away by amendment in Rule 456(2) and proviso to Rule 456(2) makes it clear that Chairman of the Cooperative Societies alone will represent his Cooperative Society in the Central Society. The said provision is made only in respect of Milk Cooperative Societies. Since the Statute has taken away the right, which a Delegate earlier had, therefore, petitioner cannot represent the society, which elected him as Delegate, before another Cooperative Society. Election of petitioner as Delegate after date of

enforcement of amended Rules, will also not improve his case. Since the field is occupied by Rules, therefore, the rights and liabilities of a Delegate will also flow from the Rules. Since right to represent his Cooperative Society has been taken away from a Delegate and given to Chairman of Milk Cooperative Society, therefore, a person elected as Delegate, cannot claim that right, which is now available only to Chairman. Petitioner cannot exercise any right which is not available to a Delegate as per the Statute. Since right to represent his society is not available to a Delegate of Primary Milk Cooperative Society, therefore, petitioner cannot claim any such right which is not available to him in law.

18. Thus, the relief claimed in the writ petition, cannot be granted.

19. Accordingly, the writ petitions fail and are hereby dismissed. Interim order(s), if any, stands vacated.

(MANOJ KUMAR TIWARI, J.)

6th FEBRUARY, 2024 Aswal