Miscellaneous Case No. 20 of 2012 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.20751 of 2012 ====================================================== 1. Kahalgaon Prakhand Matasyajivi Sahyog Samiti Ltd., Kagazitolla, Kahalgaon, Through Its Ad-Hoc Secretary Dashrath Sahni S/O Lallo Sahni R/O Vill.-Kagazitolla, Kahalgaon, P.O. + P.S.- Kahalgaon, Distt.- Bhagalpur 2. Dashrath Sahni S/O Lallo Sahni R/O Vill.- Kagazitolla, Kahalgaon, P.O.+P.S.- Kahalgaon, Distt.- Bhagalpur .... .... Petitioner/s Versus 1. The State Of Bihar Through Secretary Co-Operative Department, Bihar, Patna 2. The Registrar, Co-Operative Societies, Bihar, Patna 3. The District Co-Operative Officer, Bhagalpur 4. The Assistant Registrar, Co-operative Societies, Bhagalpur 5. Girendra Mahaldar S/O Late Jhapati Mahaldar P.S.- Rashalpur, Distt.- Bhagalpur 6. Bhol Sar Matasyajivi Swablambi Sahkari Samiti Ltd. Through Its Ex- Chief Executive Raj - Guru Bhai S/O Shiya Ram Singh R/O Vill.- Bholsar, P.S.- Rasalpur, Distt.- Bhagalpur 7. Uday Rampur Kodwar Matasyajivi Swablambi Sahkari Samiti Ltd. Through Its Ex-Chairman Gokhul Mahaldar S/O Late Ishwar Mahaldar R/O Vill.-Uday Rampur, Kodwar, P.S.- Ghogha, Distt.- Bhagalpur 8. Raj Kumar Sahni S/O Late Ramu Sahni Ex-Chairman Of Matasyajivi Swablambi Society Kagazitolla, Kahalgaon .... .... Respondent/s WITH Civil Writ Jurisdiction Case No 21873 of 2012 ====================================================== 1. Arun Mahaldar S/O Late Kartik Mahaldar R/O Vill. + P.O.- Siyan, P.S.- Kahalgaon, Dist.- Bhagalpur, Ex-Secretary Of Kahalgaon Prakhand Matasyajivi Sahyog Samiti Ltd. Kahalgaon 2. Girdhari Mahaldar S/O Sri Dev Narayan Singh R/O Vill.- Harchandpur, P.O.- Baraini, P.S.- Kahalgaon, Dist.- Bhagalpur 3. Arun Mahaldar S/O Late Jugal Mahaldar R/O Vill.- Lalapur, P.S.- Antichak, P.O.- Bhawanipur, Dist.- Bhagalpur 4. Dinesh Mahaldar S/O Sri Hital Mahaldar R/O Vill.- Paschim, Tola Bholsar, P.S.- Kahalgaon, P.O.- Ekchari, Dist.- Bhagalpur 5. Kisto Singh S/O Sri Dhusari Singh R/O Vill.- Gaughatta, P.O. + P.S.- Budhuchak, Dist.- Bhagalpur 6. Niranjan Singh S/O Sri Basudev Singh R/O Vill.- Mohanpur Gaughatta, P.O. + P.S.- Budhuchak, Dist.- Bhagalpur 7. Shukdev Mahaldar S/O Sri Hiraman Mahaldar R/O Vill.- Udayrampur, P.O. + P.S.- Ghogha, Dist.- Bhagalpur 8. Dipak Mandal S/O Sri Sukhdev Mandal R/O Vill. + P.O.- Dhanaura, Dist.- Bhagalpur 9. Bajrangi Mandal S/O Late Kulo Mandal R/O Vill. + P.O.- Channo, P.S.- Rasalpur, Dist.- Bhagalpur Versus .... .... Petitioner/s Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 2 1. The State Of Bihar 2. The Bihar State Election Authority Through Its Secretary, Bihar, Patna, Bairrak No.:- 11, Old Secretariat, Patna 3. The Registrar Co-Operative Societies Bihar, Patna 4. The Collector, Bhagalpur 5. The District Fisheries Officer Cum Chief Executive Officer, Bhagalpur 6. The Election Officer (Co-Operative Societies) Cum The Block Development Officer, Kahalgaon, District- Bhagalpur 7. Girendra Mahaldar S/O Late Jhapti Mahaldar R/O Vill. + P.O.- Ekchari, P.S.- Rasalpur, Dist.- Bhagalpur 8. Kahalgaon Prakhand Matasyajivi Samiti Ltd. Kahalgaon Block, Bhagalpur Through Its Chairman Dashrath Choudhary S/O Lalji Choudhary, R/O Vill.- Khoja Dhanaura, P.S.- Rasalpur, Dist.- Bhagalpur 9. Sanjay Mahaldar S/O Sugrib Mahaldar R/O Vill.- Bholsar, P.S.- Rasalpur, P.O.- Ekchari, Dist.- Bhagalpur 10. Pappu Mahaldar S/O Sri Ganga Mahaldar R/O Vill.- Harchandpur, P.S.- Kahalgaon, P.O.- Baraini, Dist.- Bhagalpur 11. Fuchai Sahni S/O Sitabi Sahami R/O Vill.- Oriyap, P.S.- Antichak, P.O.- Kasri, Dist.- Bhagalpur 12. Rasik Lal Mahaldar S/O Hira Lal Mahaldar R/O Vill.- Naya Tolla Bholsar, P.S.- Rasalpur, P.O.- Ekchari, Dist.- Bhagalpur .... .... Respondent/s ====================================================== Appearance : For the petitioners : M/s Pashupati Pd Sinha, Deepak Kumar, Advocates Mr Manoj Kumar Ambastha, GP 14 & M/s Subodh Kr, Mukesh Kr, ACs to GP 14 Mr Pratik Kr Sinha, AC to SC XI For the S t a t e : For private respondents M/s Ajay Kr Sinha, Rakesh Kumar Jha, Advocates ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 8 12-11-2013 The petitioners challenge the order of the Registrar, Cooperatives dated 04.10.2012 passed in Miscellaneous Case No 20 of 2012 (Girendra Mahaldar –Versus- District Cooperative Officer, Bhagalpur & Others and Election Case No 79 of 2012 (Girendra Mahaldar –Versus- Bihar State Election Authority & Others). By the aforesaid order, the Registrar, Cooperatives has set aside the order of the District Cooperative Officer,
Legal Reasoning
Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 Bhagalpur which, inter alia, permitted amalgamation of two 3 Cooperatives in the said district being Kahalgaon Anchal Matasyajivi Sahyog Samiti Limited and Matasyajivi Swawlambi Sahkari Samiti Limited, Kaghzi Tola, Kahalgaon. The consequence is that the amalgamation order having been set aside, the elections consequently for forming the Managing Committee of the amalgamated Cooperatives would also fall. The amalgamated Cooperative is known as Kahalgaon Prakhand Matasyajivi Sahyog Samiti Limited, Kahangaon. Learned counsel for the petitioners submits that the order of the Registrar, Cooperatives is bad inasmuch as he has wrongly held that the District Cooperative Officer was not authorized to register Matasyajivi Swawlambi Sahkari Samiti Limited, Kaghzi Tola, Kahalgaon as that Cooperative was not a District Level Cooperative and it being a Block Level Cooperative, its registration could not have been granted by the District Cooperative Officer rather it was the Assistant Registrar, Cooperative who can register it. Learned counsel for the petitioners submits that the District Cooperative Officer was in fact competent to grant registration. He otherwise submits that even though the Officer may have wrongly exercised the jurisdiction, the registration cannot be held to be bad because the Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 Cooperative Society was not to blame. Reliance is placed on the 4 decision of the Apex Court in the case of Gokaraju Rangaraju – Versus- State of Andhra Pradesh since reported in AIR 1981 Supreme Court 1473. Private respondents, on the other hand, submit that while passing order of amalgamation, the District Cooperative Officer left two Cooperatives on the ground that they were non-
Legal Reasoning
functional and registered at Panchayat Level. Learned counsel for the respondents point out that this whole exercise of amalgamation became necessary because of Bihar Cooperative Societies Amendment Act, 2010 (Act XXII of 2010) which brought about a change in the number of Cooperatives operating in a particular area. There was amendment to Section 8 wherein sub-section (1b) was introduced. Similarly, there was amendment and Section 11B was introduced. It is submitted that the conjoint reading of Sections 8 and 11B clearly brings out the reason for the amendment. What is contemplated now is that at the Block Level within a Block and for the entire geographical area of Block, there should be only one Fishermen Cooperative Society. All Fishermen Cooperative Societies operating in a Block have to be amalgamated. There cannot be now a Fishermen’s Cooperative at Panchayat Level because Panchayat is a part of the Block and Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 contains in the Block itself. It is further submitted that whether a 5 Cooperative is functional or non-functional, defunct or not is wholly irrelevant so long as a Cooperative is duly registered and the registration certificate is not cancelled or is not declared invalid, it continues to exist and if amalgamation has to be there then all such Cooperatives have to be amalgamated within the Block so that ultimately only one Fishermen Cooperative Society for each Block is left. Once that is done as contemplated by the second proviso to Section 11B as amended, there would be an ad hoc Management Committee for a period of one year appointed by the Registrar because upon amalgamation, different numbers of members would come in various different societies but after amalgamation once the roll of members are finalized then within one year, fresh elections have to be held and then a new Managing Committee have to be constituted for the amalgamated Cooperative Society. Having heard the learned counsel for the parties, in my view, the impugned order of the Registrar cannot be sustained and has to be set aside. Similarly, the order of the District Cooperative Officer ordering for amalgamation also cannot be sustained. Both these orders, in my view, are against the spirit of the amendment of the year, 2010. Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 6 The order of the District Cooperative Officer cannot be sustained because he has taken no steps to see that all the Fishermen Cooperatives, who are operating within the geographical area of a Block, be amalgamated. That is legislative mandate. No cooperative can be left out on the ground that it was defunct or it was not working so long as it had a valid certificate of incorporation. Thus, all the Cooperatives, may it be a Panchayat Level or Block Level, had to be amalgamated accordingly, the legislative intent being of one Fishermen Cooperative Society for each Block. The order of the Registrar also cannot be sustained. Firstly, the Registrar is wrong in holding that merely because registration of the Cooperative was done by the District Cooperative Officer, the registration was invalid. Reference in this case may be made to the judgment of the Apex Court in the case of Gokaraju Rangaraju (supra) wherein the Court, applying the doctrine of de facto/de jure held that the Officer or the Office may be wrong but the actions taken pursuant thereto cannot be held to be wrong. It is a principle of public administration that orders publicly passed by the authority professing public authority should not be disturbed. It was for the District Cooperative Officer to decide whether he had the authority or not. A Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 Cooperative approached him and he registered the Cooperative. 7 At the time when the Cooperative was registered, no objection was raised. The objection has been raised after several years. Learned counsel for the petitioners points out that by specific notification, the District Cooperative Officer was duly authorized to register which notification has deliberately not been referred to by the Registrar. The same notification has also been brought on record by the private respondents. Be that as it may, as the order of the District Cooperative Officer has to be set aside on the ground that the order is against the legislative intent as envisaged by amendment to Sections 8 and 11 as aforesaid, the order of the Registrar also falls and has to be set aside. The consequence is that the amalgamation that has taken place would have to be worked out all over again. All Fishermen’s Cooperatives in a Block, may it be Panchayat Level or Block Level, have to be amalgamated and upon such amalgamation, initially an ad hoc committee has to be constituted by the Registrar or the State Government as the case may be as contemplated by the second proviso to Section 11B of the Act and see that upon this amalgamation or reconstitution, the ad hoc Committee gets elections done for a permanent Management Committee of the new reconstituted amalgamated Patna High Court CWJC No.20751 of 2012 (8) dt.12-11-2013 Fishermen’s Cooperative Society. 8 It is expected that the District Cooperative Officer would take necessary action in this regard within one month from the date of production of a copy of this order. Till such time, the new ad hoc Committee is formed in accordance with the orders of this Court, status quo as was obtaining upon earlier amalgamation, shall be restored and continued. It is made clear that any settlement taken by any person in any name would not be a settlement in persona. It would be a settlement for and on behalf of the amalgamated Block Level Fishermen’s Cooperative Society. Let it be noted that the moment the new amalgamated Cooperative Society comes into existence, all settlements, which were with any of the Cooperatives which have merged, would be transferred to the name of the amalgamated Cooperative and will not stand in the name of any individual or through any individual officer. With these observations and directions, the two writ
Decision
petitions are disposed of. M.E.H./- (Navaniti Prasad Singh, J)