Manoj Kumar Choudhary S/O Sita Ram Choudhary and ors. Vs. the State of Bihar and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/849789
SubjectCivil
CourtPatna High Court
Decided OnOct-14-2009
Case NumberCWJC No. 17146 of 2008
Judge Ajay Kumar Tripathi, J.
ActsBihar Cooperative Societies Act - Section 44AQ; ;Bihar Cooperative Societies Rules, 1959 - Rule 22
AppellantManoj Kumar Choudhary S/O Sita Ram Choudhary and ors.
RespondentThe State of Bihar and ors.
Appellant Advocate Deepak Kumar, Adv.
Respondent Advocate Amresh Kumar Sinha, Assistant Counsel to Government Pleader XV for State,; Nitiranjan Jha and;
DispositionApplication dismissed
Excerpt:
- ajay kumar tripathi, j.1. heard counsel for the parties.2. since identical questions of law, if not facts, have been raised in the writ applications, both the writ applications came to be listed and heard together and, therefore, are being disposed of by a common order.3. the issue in question is a letter no. 6560 dated 1.10.2008 (annexure-1) which has been issued by the registrar, cooperative societies in relation to constitution of adhoc committees of primary agriculture cooperative society (hereinafter to be referred to as 'the pacs'). it is urged that the said letter needs to be quashed in view of the fact that it is in violation of the bye-laws of the pacs as well as rule 22 of the bihar cooperative societies rules, 1959. the petitioners want quashing of the said letter or direction.4. the state of bihar with an object of reviving the virtually defunct pacs decided to reconstitute and hold elections for due constitution. a very detailed kind of guidelines and rules including incorporation of section 44aq came to be made. the secretary of the department vide his communication dated 26th may, 2008 contained in annexure-4 laid the guidelines. what is relevant in the present writ applications is the provision with regard to the constitution of the adhoc committees in what can be called the transitory period. in this regard clause ^^x^^ of annexure-4 has been brought to the notice of this court and where submissions have been made that the parameters are quite clear but for some strange reason or for oblique motive yet another communication dated 1.10.2008 contained in annexure-1 came to be issued by the registrar, cooperative societies. annexure-1 laid down that in the adhoc committee the chairman or its members of the erstwhile body would mean elected chairman or members and would not include co-opted members. this direction has become the bone of contention in the present writ applications.5. one primary submission made at the bar on behalf of the petitioners is that a co-opted member is as much a member and he has a right under the statute which is bihar cooperative societies act and there is no distinction between an elected member and a co-opted member once they are put on the body. by trying to oust co-opted members from the adhoc committee constituted for the pacs in question there is not only discrimination between two set of members but a valuable right is being taken away. persons who had been put in the adhoc committee earlier in terms of annexure-4 are sought to be now removed by virtue of annexure-1.6. another submission made at the bar is that annexure-4 has been issued by the secretary of the department and his directions cannot be modified or given a go-bye by the registrar, cooperative societies since it does not have necessary jurisdiction to issue such a letters, moreso, since it has been notified under the signature of the registrar without indicating anything that it is at the direction of the state government or with the approval or consent of the state government.7. yet another submission is that even if for the sake of arguments the power of registrar is accepted but it cannot be said that it will have retrospectivity permitting ouster of already appointed members on the adhoc committee in the category of co-option.8. counter affidavit has come to be filed not only by the private respondent nos. 7 and 8 but even by the official respondents i.e. the state. they have justified the issuance of annexure-1. a stand has been taken that annexure-1 is in consultation with the state government which has been issued as a clarification to annexure-4 and the suggestion or the challenge that annexure-1 has been issued by the registrar unilaterally has no basis and is contrary to record. it is also the stand of the state that after amendment to section 44aq as brought about by the 2008 amendment, it has the effect of the societies loosing their existence. the object of constitution of the adhoc committees is to facilitate election of a new body and it has been issued with the object of preventing malpractices and bring transparency in the constitution of the adhoc committees since the state authorities had received many a complaints in this regard. it is also a transitory provision to ensure free and fair election in constitution of the new committees of the pacs across the state of bihar, since there was effort made by the old committee members and chairman to frustrate the object of the amendment and prevent fresh blood to flow into the pacs.9. stand of the private respondents is that under the reorganization scheme since every panchayat was to become the basic unit for every pacs then the old pacs had undergone changes in its geographical boundaries and area of operation. by allowing co-opted members of the old pacs they would be overlapping. they have also supported the object and purpose for which the clarification contained in annexure-1 came to be issued.10. the court has gone through the pleadings and taken into consideration the rival submissions made in this regard. the contention on behalf of the petitioners that the registrar does not have power to override annexure-4 or that it is in conflict with the directions issued by the secretary seems to be belied in view of the categorical statement and stand taken by the state that it has been issued after due consideration of the state with the object of clarifying the object of the amendments and the guidelines to facilitate a free and fair constitution of the new units of pacs which had to come-up at every panchayat level. these are only the transitory provisions and the challenge which has been made by the petitioners in the present writ applications saying that annexure-1 is de hors the power and the provisions to the cooperative act or the rules made therein does not seem to be borne out from the provisions. the guidelines are very much in place in annexure-4 and which is not a subject matter of challenge now. if the basic guidelines have not been challenged then merely because certain clarifications have been issued by the state government under the signature of the registrar, cooperative societies the same does not become de hors the powers or arbitrary per se. for after all the guidelines and the amendments have to be seen for the object for which it has been made. if the government is of the considered opinion that only elected members ought to be put in place in the adhoc committee for a smooth transition and constitution of the new pacs then merely because it is the effect of keeping co-opted members out, the transitory provisions does not become assailable.11. the court is of the opinion that annexure-1 does not suffer from any illegality of serious nature which requires interference or quashing by issuance of a writ.12. as already noted above this was a transitory provision and the elections for most of the pacs have already been held or are being held and the new bodies have come into place or will be in place in no time. the writ applications have no merit and they are fit to be dismissed.13. the writ applications are dismissed.
Judgment:

Ajay Kumar Tripathi, J.

1. Heard counsel for the parties.

2. Since identical questions of law, if not facts, have been raised in the writ applications, both the writ applications came to be listed and heard together and, therefore, are being disposed of by a common order.

3. The issue in question is a letter No. 6560 dated 1.10.2008 (Annexure-1) which has been issued by the Registrar, Cooperative Societies in relation to constitution of Adhoc committees of Primary Agriculture Cooperative Society (hereinafter to be referred to as 'the PACS'). It is urged that the said letter needs to be quashed in view of the fact that it is in violation of the bye-laws of the PACS as well as Rule 22 of the Bihar Cooperative Societies Rules, 1959. The petitioners want quashing of the said letter or direction.

4. The State of Bihar with an object of reviving the virtually defunct PACS decided to reconstitute and hold elections for due constitution. A very detailed kind of guidelines and rules including incorporation of Section 44AQ came to be made. The Secretary of the Department vide his communication dated 26th May, 2008 contained in Annexure-4 laid the guidelines. What is relevant in the present writ applications is the provision with regard to the constitution of the Adhoc committees in what can be called the transitory period. In this regard Clause ^^x^^ of Annexure-4 has been brought to the notice of this Court and where submissions have been made that the parameters are quite clear but for some strange reason or for oblique motive yet another communication dated 1.10.2008 contained in Annexure-1 came to be issued by the Registrar, Cooperative Societies. Annexure-1 laid down that in the Adhoc committee the Chairman or its members of the erstwhile body would mean elected Chairman or members and would not include co-opted members. This direction has become the bone of contention in the present writ applications.

5. One primary submission made at the Bar on behalf of the petitioners is that a co-opted member is as much a member and he has a right under the statute which is Bihar Cooperative Societies Act and there is no distinction between an elected member and a co-opted member once they are put on the body. By trying to oust co-opted members from the Adhoc committee constituted for the PACS in question there is not only discrimination between two set of members but a valuable right is being taken away. Persons who had been put in the Adhoc committee earlier in terms of Annexure-4 are sought to be now removed by virtue of Annexure-1.

6. Another submission made at the Bar is that Annexure-4 has been issued by the Secretary of the Department and his directions cannot be modified or given a go-bye by the Registrar, Cooperative Societies since it does not have necessary jurisdiction to issue such a letters, moreso, since it has been notified under the signature of the Registrar without indicating anything that it is at the direction of the State Government or with the approval or consent of the State Government.

7. Yet another submission is that even if for the sake of arguments the power of Registrar is accepted but it cannot be said that it will have retrospectivity permitting ouster of already appointed members on the Adhoc committee in the category of co-option.

8. Counter affidavit has come to be filed not only by the private respondent Nos. 7 and 8 but even by the official respondents i.e. the State. They have justified the issuance of Annexure-1. A stand has been taken that Annexure-1 is in consultation with the State Government which has been issued as a clarification to Annexure-4 and the suggestion or the challenge that Annexure-1 has been issued by the Registrar unilaterally has no basis and is contrary to record. It is also the stand of the State that after amendment to Section 44AQ as brought about by the 2008 amendment, it has the effect of the societies loosing their existence. The object of constitution of the Adhoc committees is to facilitate election of a new body and it has been issued with the object of preventing malpractices and bring transparency in the constitution of the Adhoc committees since the State authorities had received many a complaints in this regard. It is also a transitory provision to ensure free and fair election in constitution of the new committees of the PACS across the State of Bihar, since there was effort made by the old committee members and Chairman to frustrate the object of the amendment and prevent fresh blood to flow into the PACS.

9. Stand of the private respondents is that under the reorganization scheme since every Panchayat was to become the basic unit for every PACS then the old PACS had undergone changes in its geographical boundaries and area of operation. By allowing co-opted members of the old PACS they would be overlapping. They have also supported the object and purpose for which the clarification contained in Annexure-1 came to be issued.

10. The Court has gone through the pleadings and taken into consideration the rival submissions made in this regard. The contention on behalf of the petitioners that the Registrar does not have power to override Annexure-4 or that it is in conflict with the directions issued by the Secretary seems to be belied in view of the categorical statement and stand taken by the State that it has been issued after due consideration of the State with the object of clarifying the object of the amendments and the guidelines to facilitate a free and fair constitution of the new units of PACS which had to come-up at every Panchayat level. These are only the transitory provisions and the challenge which has been made by the petitioners in the present writ applications saying that Annexure-1 is de hors the power and the provisions to the Cooperative Act or the Rules made therein does not seem to be borne out from the provisions. The guidelines are very much in place in Annexure-4 and which is not a subject matter of challenge now. If the basic guidelines have not been challenged then merely because certain clarifications have been issued by the State Government under the signature of the Registrar, Cooperative Societies the same does not become de hors the powers or arbitrary per se. For after all the guidelines and the amendments have to be seen for the object for which it has been made. If the Government is of the considered opinion that only elected members ought to be put in place in the Adhoc committee for a smooth transition and constitution of the new PACS then merely because it is the effect of keeping co-opted members out, the transitory provisions does not become assailable.

11. The Court is of the opinion that Annexure-1 does not suffer from any illegality of serious nature which requires interference or quashing by issuance of a writ.

12. As already noted above this was a transitory provision and the elections for most of the PACS have already been held or are being held and the new bodies have come into place or will be in place in no time. The writ applications have no merit and they are fit to be dismissed.

13. The writ applications are dismissed.