IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7581 of 2008
With
Interlocutory Application No.2213 of 2011
======================================================
1. Ramzan Ansari son of Md. Yar Ansari, Delegate, Bhabhua Cooperative
Cold Storage Society Ltd., Bhabhua, District-Kaimur.
2. Wakil Prasad Yadav son of Late Ram Pravesh Singh Yadav, Delegate of
Marhaura C.D. & C.M. Union Ltd., Marhaura, District-Saran.
3. Thano Munda son of Late Manki Munda, Delegate of Pandara LAMPS,
Kanke, Ranchi, Jharkhand.
4. Satish Das son of Brahmdeo Das, Deletage of Sarsojole LAMPS,
Shikarpara, Dumka, Jharkhand.
5. Narendra Sharma son of Late Baleshwar Singh, Delegate of Kurtha
Byapar Mandal Sahyog Samiti Ltd., Kurtha, Distt.-Jehanabad.
…. …. Petitioners
Versus
1. The State of Bihar through the Secretary to the Government of Bihar,
Cooperative Department, Bihar, Patna.
2. The Registrar, Cooperative Societies, Bihar, Patna.
3. The Under Secretary to the Government of Bihar, Cooperative
Department, Bihar, Patna.
4. Shri P.K. Sinha, Joint Registrar (Marketing), Cooperative Societies,
Bihar Patna-cum-The Election Officer, BISCOMAUN, Patna.
5. Chairman, Bihar State Cooperative Creative Marketing Union Ltd.
(BISCOMAUN), West of Gandhi Maidan, Patna.
6. The Bihar State Cooperative Marketing Union Ltd. (BISCOMAUN),
West of Gandhi Maidan, Patna through its Managing Director.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.9993 of 2008
======================================================
Uday Kumar Mishra, son of Satendra Mishra, Resident of Mohalla
Thakurwari Road, Shrinagar Sahpur, Aurangabad, P.S. Aurangabad Sadar,
2 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
2 / 28
District Aurangabad.
…. …. Petitioner
Versus
1. The State of Bihar.
2. The Secretary, Co-operative Department, Vikash Bhawan, New
Secretariat, Bihar, Patna.
3. The Registrar, Co-operative Societies, Vikash Bhawan, New Secretariat,
Bihar, Patna.
4. The Under Secretary, Co-operative Department, Vikash Bhawan, New
Secretariat, Bihar, Patna.
5. P.P. Ojha, State Anushrawan Officer-cum-Election Officer, Bihar State
Cooperative Bank Limited, Patna.
6. The Bihar State Cooperative Bank Limited, through its Managing
Director, Ashok Raj Path, Patna.
7. The Chairman, Bihar State Cooperative Bank Limited, Ashok Raj Path,
Patna.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.11468 of 2008
======================================================
1. Dhumnagar Primary Agriculture Credit Cooperative Society having its
office at Dhumnagar, P.S. Nautan, Distt. West Champaran through its
Chairman, Harish Chandra Prasad.
2. Harish Chandra Prasad, S/o Late Hari Narain Pd., Resident of Village
Dhumnagar, P.S. Nautan, Distt. West Champaran.
.... .... Petitioners
Versus
1. The State of Bihar through the Secretary, Department of Cooperative,
Bihar, Patna.
2. Shri Yogendra Prasad, son of name not known to petitioner, Secretary to
Governor, Bihar, Patna.
3. Registrar, Cooperative Societies, Bihar, Patna.
4. Jt. Registrar, Cooperative Societies, Tirhut Division, Muzaffarpur.
5. District Cooperative Officer, West Champaran at Bettiah.
6. Asstt. Registrar, Cooperative Societies, Nautan, Distt. West Champaran.
3 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
3 / 28
7. Cooperative Extension Officers, C/o District Cooperative Officer, West
Champaran at Bettiah.
8. Managing Director, National Central Cooperative Bank, Bettiah, West
Champaran.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.11807 of 2008
======================================================
Tarkeshwar Singh, S/o late Mahesh Singh, Resident of Village Dullahpur,
P.S. Simeri, Distt. Buxar, at present Director, Central Cooperative Bank,
Arrah.
…. …. Petitioner
Versus
1. The State of Bihar through Secretary, Department of Cooperative,
Bihar, Patna.
2. Shri Yogendra Prasad, Secretary to the Governor, Bihar, Patna.
3. Registrar, Cooperative Societies, Bihar, Patna.
4. Jt. Registrar, Cooperative Societies, Patna Division.
5. District Cooperative Officer, Arrah, Distt. Bhojpur.
6. Arrah Central Cooperative Bank, Arrah, through its Managing Director.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.13186 of 2008
======================================================
1. Usman Chak Primary Agriculture Credit Co-operative Society through
its Chairman Dhaneshwar Mochi, son of Late Ramdhani Mochi, Village
Usman Chak, P.S. Masaurhi, District-Patna.
2. Bhadaura Primary Agriculture Credit Co-operative Society through its
Chairman Nageshwar Prasad Singh, son of Late Chandrika Singh,
village Bhadaura, P.S. Masaurhi, District-Patna.
3. Rewa Primary Agriculture Credit Co-operative Society through its
Chairman Ganesh Prasad Singh, son of Late Jagat Pd. Singh, Village
Saguni, P.S. Masaurhi, District-Patna.
.... .... Petitioners
4 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
4 / 28
Versus
1. The State of Bihar through the Secretary to the Government,
Department of Law, Bihar, Patna.
2. The Secretary to the Government, Cooperative Department, Bihar,
Patna.
3. The Registrar, Cooperative Societies, Bihar, Patna.
4. The District Cooperative Officer, Patna.
5. The Assistant Registrar, Cooperative Societies, Masaurhi, District-
Patna.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.14376 of 2008
======================================================
Shashi Bhushan Prasad Singh, aged about 56 years, son of Sri Janardhan
Prasad Singh, Resident of Village- Goar Dharmpur, P.O.-Nadama Tola, P.S.
Barh, Distt. Patna, at present Chairman of Nadama Panchayat PACS
(West), Barh.
…. …. Petitioner
Versus
1. The State of Bihar.
2. The Registrar Cooperative, Government of Bihar, Patna.
3. Joint Registrar, Patna Division, Patna.
4. The District Cooperative Officer, Patna.
5. Assistant Registrar Barh, Distt.-Patna.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.14635 of 2008
======================================================
1. Sindhuwari Primary Agriculture Credit Cooperative Society having its
office at Erarzi Nainha, P.S. Hajipur Sadar, Distt Vaishali through its
Chairman, Sri Birendra Kumar (petitioner no.2)
2. Birendra Kumar, S/o Shri Jamun Rai, resident of Nainha, P.S. Hajipur
Sadar, Distt Vaishali Chairman of the Sindhuwari PACS (petitioner
no.1).
5 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
5 / 28
…. …. Petitioners
Versus
1. The State of Bihar through the Secretary to the Government,
Department of Law, Bihar, Patna.
2. The Secretary to the Government, Cooperative Department, Bihar,
Patna.
3. The Registrar, Cooperative Societies, Bihar, Patna.
4. The Jt. Registrar, Cooperative Societies, Tirhut Division, Muzaffarpur.
5. The District Cooperative Officer, Vaishali at Hajipur.
6. Asstt. Registrar, Cooperative Societies, Hajipur, Dist. Vaishali.
7. Block Cooperative Extension Officer, Hajipur Distt. Vaishali.
8. Cooperative Extension Officer attached to the Vyapar Mandal
Cooperative Society, Hajipur, Distt. Vaishali.
…. …. Respondents
======================================================
With
Civil Writ Jurisdiction Case No.15080 of 2008
======================================================
Karmopur Primary Agriculture Credit Cooperative Society having its office
at Mirzapur, P.S. Raghopur, Distt. Vaishali through its Chairman, Smt.
Bhanu Devi, W/o Shri Bikram Kumar Singh, Resident of Village Mirzapur,
P.S. Raghopur, Distt. Vaishali.
…. …. Petitioners
Versus
1. The State of Bihar through the Secretary to the Government,
Department of Law, Bihar, Patna.
2. The Secretary to the Government, Cooperative Department, Bihar,
Patna.
3. The Under Secretary to the Government, Cooperative Department,
Bihar, Patna.
4. The Registrar, Cooperative Societies, Bihar, Patna.
5. District Cooperative Officer, Vaishali at Hajipur.
6. Asstt. Registrar, Cooperative Societies, Raghopur Block, Dist. Vaishali.
7. Block Cooperative Extension Officer, Raghopur, Distt. Vaishali.
8. Cooperative Extension Officer Raghopur Block, Distt. Vaishali.
.... .... Respondents 1st Party
6 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
6 / 28
9. Jaferabad Primary Agriculture Credit Cooperative Society having its
office at Jaferabad, P.S. Raghopur, Distt. Vaishali through its Chairman,
Shri Bhagwan Lal Rai, father‟s name not known, Resident of Village
Jaferabad, P.S. Raghopur, Distt. Vaishali.
…. …. Respondent 2nd Party
======================================================
With
Civil Writ Jurisdiction Case No.15082 of 2008
======================================================
Sukumarpur Primary Agriculture Credit Cooperative Society having its
office at Sukumarpur, P.S. Raghopur, Distt. Vaishali through its Chairman,
Shri Ajit Kumar Singh, S/o Late Satyendra Narain Singh, Resident of
Village Sukumarpur, P.S. Raghopur, Distt. Vaishali.
…. …. Petitioner
Versus
1. The State of Bihar through the Secretary to the Government,
Department of Law, Bihar, Patna.
2. The Secretary to the Government, Cooperative Department, Bihar,
Patna.
3. The Under Secretary to the Government, Cooperative Department,
Bihar, Patna.
4. The Registrar, Cooperative Societies, Bihar, Patna.
5. District Cooperative Officer, Vaishali at Hajipur.
6. Asstt. Registrar, Cooperative Societies, Raghopur Block, Dist. Vaishali.
7. Block Cooperative Extension Officer, Raghopur, Distt. Vaishali.
8. Cooperative Extension Officer Raghopur Block, Distt. Vaishali.
…. …. Respondents 1st Party
9. Jahangirpur Primary Agriculture Credit Cooperative Society having its
office at Jahangirpur, P.S. Raghopur, Distt. Vaishali through its
Chairman, Shri Sabhapati Singh, father‟s name not known, Resident of
Village Jahangirpur, P.S. Raghopur, Distt. Vaishali.
…. …. Respondent 2nd Party
======================================================
Appearance :
(In CWJC No.7581 of 2008)
For the Petitioners : Mr. Y.V. Giri, Senior Advocate with
7 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
7 / 28
Mr. Nitiranjan Jha, Advocate
Mr. Rakesh Kumar Jha, Advocate
Mrs. Kiran Kumari, Advocate
For the Respondents 1 to 4: Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
For the Respondent No.5 : Mr. Ishwari Singh, Advocate
For the Interveners : Mr. Anil Amrit, Advocate with
(I.A. No.2213 of 2011) Mr. Mukesh Kumar, Advocate
(In CWJC No.9993 of 2008)
For the Petitioner : Mr. Yogendra Mishra, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
For the Respondent No.6: Mr. Rajesh Prasad Choudhary, Advocate
(In CWJC No.11468 of 2008)
For the Petitioners : Mr. Yogendra Mishra, Advocate with
Mr. Raghunath Kumar, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
(In CWJC No.11807 of 2008)
For the Petitioner : Mr. Yogendra Mishra, Advocate with
Mr. Raghunath Kumar, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
(In CWJC No.13186 of 2008)
For the Petitioners : Mr. Yogendra Mishra, Advocate with
Mr. Raghunath Kumar, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
(In CWJC No.14376 of 2008)
For the Petitioner : None
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
8 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
8 / 28
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
(In CWJC No.14635 of 2008)
For the Petitioners : Mr. Yogendra Mishra, Advocate with
Mr. Raghunath Kumar, Advocate
Mr. Lakshmi Kant Tiwary, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
(In CWJC No.15080 of 2008)
For the Petitioner : Mr. Yogendra Mishra, Advocate
Mr. Raghunath Kumar, Advocate
For the Respondent State : Mr. Devendra Kumar Sinha, AAG-2 with
Mr. Biresh Kumar Sinha, A.C. to AAG-2
(In CWJC No.15082 of 2008)
For the Petitioner : Mr. Yogendra Mishra, Advocate
Mr. Raghunath Kumar, Advocate
For the Respondent State : Mr. Lalit Kishore, AAG-1 with
Mr. Vikash Kumar, A.C. to AAG-1
Mr. Shivam Singh, A.C. to AAG-1
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE JYOTI SARAN
C.A.V. ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
16. 23-09-2011 This group of writ petitions under Article 226 of the
Constitution are filed by the elected delegates of various Primary
Agricultural Credit Cooperative Societies (hereinafter referred to
as “the PACS”) in the State of Bihar. The petitioners have
challenged the constitutional validity of Section 14A (1) and 14A
(2) of the Bihar Cooperative Societies Act, 1935 (hereinafter
referred to as „the Act of 1935‟) inserted by Section 5 of the Bihar
9 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
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Cooperative Societies (Amendment) Act, 2008 (Bihar Act 18 of
2008 published in the Official Gazette on 30 th April 2008)
(hereinafter referred to as „the Act of 2008‟) and the Government
Notification dated 1st May 2008. The petitioners have also
challenged the order dated 1st May 2008 made by the respondent
no.2, the Registrar, Cooperative Societies, Bihar (hereinafter
referred to as „the Registrar‟).
The matter at dispute is the election of the Governing
Body of the Bihar State Cooperative Marketing Union Limited
(hereinafter referred to as „the BISCOMAUN‟), a Cooperative
Society registered under the Bihar Cooperative Societies Act,
1935. The BISCOMAUN is the apex Cooperative Society of
which the district level Marketing Societies and the Panchayat
level Primary Agricultural Credit Societies (PACS) are the
members. Pursuant to the report of the Baidyanathan Committee,
with a view to reviving the short term cooperative credit structure,
the State of Bihar has, under the Act of 2008, made certain
amendments to the Act of 1935. The impugned section 14A is part
of that amendment.
The State of Bihar has, with a view to providing a
common mechanism and procedure for holding elections of the
managing committees of the cooperative societies and elected
representatives of the bodies and institutions managed by the
elected bodies, established the State Election Authority under the
Bihar State Election Authority Act, 2008 (Bihar Act 14 of 2008
published in the Official Gazette on 23rd April 2008) (hereinafter
referred to as “the Act 14 of 2008”). The Election Authority is
constituted under Section 3 of the said Act. Section 4 of the said
Act confers the power, authority and jurisdiction of
superintendence, direction and control of the preparation of
10 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
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electoral rolls and for conduct of elections to such bodies as
Cooperative Societies, Shiksha Samiti or any other institution,
organization, establishment, which may be entrusted to it by the
State Government. Section 5 of the said Act provides for
administrative machinery for conduct of election.
In exercise of power conferred by the aforesaid
Section 14A (1) of the Act of 1935 read with the Act 14 of 2008,
the State Government, under impugned Notification dated 1st May
2008, brought seven societies including the PACS, the Marketing
Societies and the BISCOMAUN within the purview of the State
Election Authority constituted under the aforesaid Bihar State
Election Authority Act, 2008. The said Notification was published
in the Government gazette on 7th May 2008.
Under the prevailing Bye-laws, election of the
governing body of the BISCOMAUN is held from amongst the
delegates elected by the constituent district level Marketing
Cooperative Societies and the PACS. The delegates elected by the
aforesaid district level Marketing Cooperative Societies
(Marketing Societies) and the PACS elect from amongst
themselves the members of the governing body and the Managing
Director of the BISCOMAUN. The term of the existing governing
body of the BISCOMAUN was about to expire on 24 th May 2008.
In the wake of completion of the term of the existing governing
body, the Registrar, Co-operative Societies, Bihar under his order
dated 3rd March 2008 declared election programme for election of
the delegates of the Marketing Societies and the PACS and the
election of the governing body of the BISCOMAUN. The election
of the delegates of the PACS was completed on 12 th April 2008 as
scheduled. The petitioners are those delegates who were elected by
the respective PACS on 12th April 2008. Before the date of filing
11 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
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nominations for election to the governing body of the
BISCOMAUN on 12th May 2008, the Act of 1935 was amended
by the Act of 2008. In view of Section 14A inserted by the Act of
2008 and the Government Notification dated 1st May 2008, the
PACS and the BISCOMAUN having been brought within the
purview of the State Election Authority, the Registrar, by order
dated 1st May 2008, stayed the election process for election of the
governing body of the BISCOMAUN. Feeling aggrieved the
petitioners have filed the present writ petitions to challenge
constitutional validity of Section 14A of the Act of 1935 and the
Notification dated 1st May 2008 and also to challenge the order
dated 1st May 2008 made by the Registrar.
As the said order was made before the Government
Notification was published in the Official Gazette, by order dated
7th May 2008 made on C.W.J.C. No. 7581 of 2008, the same was
stayed. In view of the Court order, after the Notification was
published in the Official Gazette on 7th May 2008, on 9th May
2008 the Registrar made order afresh. This time the Registrar not
only stayed the process for election of the governing body of the
BISCOMAUN but he also stayed the election of the delegates of
the PACS. The said order dated 9th May 2008 has also been
challenged in Interlocutory Application No.2893 of 2008.
Section 14A of the Act of 1935 reads as under:
“14A. Election to the Managing
Committee of certain registered societies.- (1) The
Government may by notification in the Official
Gazette prescribe that election to the Managing
Committee of a class or classes of registered
societies shall be conducted by an authority, by
whatever name such an authority may be known,
12 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
12 / 28
created for the purpose of conduct of election to
the Managing Committee of registered societies
under this Act and/or for any other body,
organization, committee etc. and in the manner
prescribed for the conduct of election by such
authority.
(2) Notwithstanding anything contained in
any provision of this Act, rules made thereunder
and bye laws of a registered society, the election to
the Managing Committee of such class or classes of
registered societies notified under sub-section (1),
shall, after the date of such notification, be held in
terms of the provision of this section, even if the
process of election has commenced but the result of
such election has not been declared prior to that
date.
(3) Notwithstanding any thing contained in
sub-section (9) of Section-14 of this Act, rules made
thereunder and the bye laws of a registered
society, the election to the Managing Committee of
the class or classes of registered societies notified
under sub-section (1) shall be held within six
months from the date of such notification which
may further be extended for a period of six
months.
(4) Notwithstanding anything contained in
sub-section (9) of Section-14 of this Act, rules made
thereunder and the bye laws of a registered
society, if the term of the Managing Committee of
such registered societies notified under sub-section
13 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
13 / 28
(1) expires after the notification under that sub-
section, shall get extended till such time the
Managing Committee is constituted after elections
in terms of the provision contained in that sub-
section.
(5) Any registered society notified under
sub-section (1) and after the constitution of its
Managing Committee under sub-section (2) is
superseded or ceases to exist for whatever reason,
before the expiry of its terms under sub-section (9)
of Section-14, the election to the Managing
Committee for such society shall be conducted by
the same authority as prescribed under sub-section
(1). The term of such Managing Committee
including the term held by the earlier Managing
Committee along with the period due to
supersession or otherwise, if any, shall not exceed
the period prescribed under the provision of sub-
section (9) of Section-14.
(6) No election to any class or classes of
registered societies notified under sub-section (1)
shall not be called in question except by way of an
election petition filed within ninety days from
declaration of the result of such election and the
same shall be decided as a dispute under Section-
48 of this Act. Such an election petition shall be
filed before the Registrar or such other officer
appointed to assist the Registrar under Section-6
of this Act.”
Learned counsel Mr. Y.V. Giri has appeared for the
14 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
14 / 28
petitioners. He has submitted that the impugned Notification
bringing the BISCOMAUN within the purview of the Election
Authority is vitiated by malafide. He has submitted that the Act of
2008 was enacted on 18th April 2008 and was published in the
official gazette of the State Government on 30th April 2008. The
said Act, therefore, became effective on 30th April 2008.
Immediately on 1st May 2008 the impugned Notification was
issued under Section 14A of the Act of 1935 bringing the
BISCOMAUN within the purview of the State Election Authority.
The intention to nullify the election of the writ petitioners as the
delegates of the respective PACS is writ large in the conduct of
the State Government.
Mr. Giri has submitted that Section 14A of the Act of
1935 confers unfettered and indiscriminate power upon the State
Government to bring any Cooperative Society within the purview
of the State Election Authority or any other authority created for
the purpose. Such indiscriminate power is likely to be misused
and in the present case, as demonstrated above, it is in fact
misused. The conferment of power without any guidelines
amounts to excessive delegation of power which in itself vitiates
the enactment.
In the alternative Mr. Giri has submitted that under
impugned Section 14A of the Act of 1935 the election of a society
is required to be held afresh in case the election has commenced
but not completed. In the present case, the election of the writ
petitioners as the delegates of the PACS was completed before the
date of the Act of 2008. The said election, therefore, need not be
and cannot be directed to be held afresh. May be, that the
election of the governing body of the BISCOMAUN from
amongst the delegates elected by the PACS is required to be
15 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
15 / 28
conducted by the Election Authority. In support of his
submissions Mr. Giri has relied upon the judgments of the
Hon‟ble Supreme Court in the matters of M/s Devi Das Gopal
Krishna, etc. v. State of Punjab and others, (A.I.R. 1967 S.C.
1895); and of The State of Punjab and another v. Khan Chand,
[(1974) 1 SCC 549]; and of this Court in the matters of Vidya
Singh v. The State of Bihar and others (1989 PLJR 377); and of
Rameshwar Singh v. State of Bihar and others, [1993 (1) BLJ
210].
The Petitions are contested by the learned Additional
Advocate General-1 Mr. Lalit Kishore. He has submitted that
unless it is demonstrated that the impugned provision contravenes
any of the provisions of the Constitution, the same cannot be held
to be ultra vires. In support of his submission he has relied upon
the judgments of the Hon‟ble Supreme Court in the matters of
Government of Andhra Pradesh and others v. P. Laxmi Devi
(Smt.), [(2008) 4 SCC 720); of Sardar Sarup Singh and others v.
State of Punjab and others, (A.I.R. 1959 S.C. 860); of Ram
Krishna Dalmia v. Justice Tendolkar, (A.I.R. 1958 S.C. 538); of
The State of West Bengal v. Anwar Ali Sarkar and another,
(A.I.R. 1952 S.C. 75); of Kathi Raning Rawat v. State of
Saurashtra, (A.I.R. 1952 S.C. 123); of V.C. Shukla v. Delhi
Admn., (A.I.R. 1980 S.C. 1382); of L.N. Mukherjee v. State of
Madras, (A.I.R. 1961 S.C. 1601); of Matajog Dobey v. H.C.
Bhari, (A.I.R. 1956 S.C. 44); of this court in the matter of Bihar
Agriculture Marketing Board Employees Association v. State of
Bihar, [2008 (2) PLJR 274]; and of the Supreme Court of the
United States in the matter of Charlie Middleton, Plff. In Err., v.
Texas Power & Light Company, (249 U.S. 152).
Learned advocate Mr. Ishwari Singh has appeared for
16 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
16 / 28
the Chairman, BISCOMAUN. He has supported the writ petitions.
Learned advocate Mr. Yogendra Mishra has appeared
for the Central Cooperative Bank in C.W.J.C. Nos. 11807 of
2008, 13186 of 2008 and 15082 of 2008. He has supported the
writ petitions. He has submitted that impugned Section 14A of the
Act of 1935 infringes the fundamental right to form association
conferred by Article 19(1)(c) of the Constitution. He has also
relied upon Section 44AQ of the Act of 1935.
Under Section 6 of the Act of 2008 the State
Government has made certain amendment in Section 44AQ of the
Act of 1935. Section 44AQ of the Act of 1935 empowers the
Registrar to order liquidation of the societies and amalgamation of
several societies. The sub-sections (2), (3) and (4) of the said
Section 44AQ, since its amendment by the Act of 2008, read as
under:
44AQ “(2)(a) In order to achieve the
objective of this Act, to bring uniformity in the
operation of the societies under this Chapter, to
enhance their strength and usefulness and to make
them viable for the purpose of development of
agriculture, the area of a Primary Agriculture
Credit Society shall be co-terminus with that of a
panchayat and there will be only one such society
in each panchayat.
(b) Notwithstanding anything to the contrary
contained in this Act, if the area of a Primary
Agriculture Credit Society is found not to be that
of a panchayat as provided under sub-clause (a) of
this sub-section, the Registrar or an officer
authorized by Registrar to act on his behalf, who
17 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201117 / 28
shall not be below the rank of Assistant Registrar,
may order for reorganization including
amalgamation or division of one or more such
societies as the case may be and register the new
society/societies after such reorganization.
“(3) Notwithstanding anything contrary in
this Act, the society or societies which are
reorganized under sub-section (2) along with its
Managing Committee shall be deemed to have
been dissolved and shall cease to exist from the
date of registration of the new society/societies
under sub-section (2) and the membership of such
registered society shall stand transferred to the
respective primary agriculture credit society
created for the panchayat to which such members
belong after reorganization under sub-section (2)
and all the assets and liabilities thereof shall get
divided/distributed amongst the new
society/societies in the manner prescribed by the
Registrar/Government;
Provided that the State Govt. may from time
to time, declare a moratorium on the liabilities of
the new society/societies created under sub-section
(2) of this Section.”
“(4)(a) Notwithstanding anything contrary in
this Act, upon the reorganization of societies under
sub-section (2) of this Section and establishment of
new society/societies under sub-section (3) of this
section, the Registrar/Government shall constitute
or provide for constitution of an ad hoc Managing
18 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201118 / 28
Committee for the purposes of managing the
affairs of the new society/societies till such time as
a new Managing Committee is constituted after
elections under the provisions of this Act and the
ad hoc managing committee so constituted shall
exercise such powers and perform such functions
as may be prescribed.
(b) Notwithstanding anything contrary in
this Act, upon the constitution of the new
Managing Committee after elections under clause
(a), the Managing Committee of all such affiliating
societies of which a primary agriculture credit
society is a member or federation of such
affiliating societies, shall be reconstituted, as per
provisions contained in this Act for constitution of
the Managing Committee of such societies.”
Thus, by amendment made under the Act of 2008 the
structure of the PACS has been modified from its roots. The
PACS are required to be reorganized and the election of the
Managing Committee of such reorganized PACS are required to
be held as envisaged by above referred Section 44AQ read with
Section 14A of the Act of 1935 read with the Bihar Act 14 of
2008.
In the matter of M/s Devi Das Gopal Krishna
(supra), challenge before the Hon‟ble Supreme Court was in
respect of certain provisions of Punjab General Sales Tax Act.
Challenge was on the ground of uncontrolled power given to the
Provincial Government to levy tax. The Hon‟ble Supreme Court
observed that, “”The Constitution confers a power and imposes
a duty on the legislature to make laws. The essential legislative
19 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
19 / 28
function is the determination of the legislative policy and its
formulation as a rule of conduct. Obviously it cannot abdicate
its functions in favour of another. But in view of the
multifarious activities of a welfare State, it cannot presumably
work out all the details to suit the varying aspects of a complex
situation. It must necessarily delegate the working out of
details to the executive or any other agency. But there is a
danger inherent in such a process of delegation. An
overburdened legislature or one controlled by a powerful
executive may unduly overstep the limits of delegation. It may
not lay down any policy at all; it may declare its policy in vague
and general terms; it may not set down any standard for the
guidance of the executive; it may confer an arbitrary power on
the executive to change or modify the policy laid down by it
without reserving for itself any control over subordinate
legislation. This self effacement of legislative power in favour of
another agency either in whole or in part is beyond the
permissible limits of delegation. It is for a Court to hold on a
fair, generous and liberal construction of an impugned statute
whether the legislature exceeded such limits. But the said
liberal construction should not be carried by the Courts to the
extent of always trying to discover a dormant or latent
legislative policy to sustain an arbitrary power conferred on
executive authorities. It is the duty of the Court to strike down
without any hesitation any arbitrary power conferred on the
executive by the legislature.”
Having said thus, the Court declared the impugned
Section 5 as void. The Court observed, “the minimum we expect
of the Legislature is to lay down in the Act conferring such a
power of fixation of rates clear legislative policy or guidelines
20 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
20 / 28
in that regard.”
In the matter of Khan Chand (supra), the constitution
Bench of the Hon‟ble Supreme Court upheld the order of the High
Court striking down Section 2 of the East Punjab Moveable
Property (Requisitioning) Act, 1947 on the ground that it violated
Article 14 of the Constitution. The majority view held, “The Act
confers arbitrary powers for requisitioning of movable
property upon the authorities under the Act and that no
guidelines whatsoever have been prescribed for the exercise
of the powers of requisitioning.”
We do agree with Mr. Lalit Kishore that no statute or
legislative enactment can be held invalid unless it is made without
legislative competence or it violates the constitutional provisions.
The law on the point is well settled. We need not refer to all the
above judgments relied upon by Mr. Lalit Kishore. We may,
however, refer to the judgment of the Constitution Bench of the
Hon‟ble Supreme Court in the Matter of Ram Krishna Dalmia
(supra). In paragraph 11 and 12 of the judgment, the Court has
culled the principles thus: –
The principle enunciated above has been
consistently adopted and applied in subsequent
cases. The decisions of this Court further
establish-
(a) that a law may be constitutional even though
it relates to a single individual if, on account of
some special circumstances or reasons
applicable to him and not applicable to others,
that single individual may be treated as a class
by himself;
(b) that there is always a presumption in favour
21 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201121 / 28
of the constitutionality of an enactment and the
burden is upon him who attacks it to show
that there has been a clear transgression of
the constitutional principles;
(c) that it must be presumed that the
Legislature understands and correctly
appreciates the need of its own people, that
its laws are directed to problems made manifest
by experience and that its discriminations are
based on adequate grounds;
(d) that the Legislature is free to recognise
degrees of harm and may confine its restrictions
to those cases where the need is deemed to be the
clearest ;
(e) that in order to sustain the presumption
of constitutionality the Court may take into
consideration matters of common knowledge,
matters of common report, the history of the
times and may assume every state of facts which
can be conceived existing at the time of
legislation; and
(f) that while good faith and knowledge of the
existing conditions on the part of a Legislature
are to be presumed, if there is nothing on the
face of the law or the surrounding circumstances
brought to the notice of the Court on which the
classification may reasonably be regarded as
based, the presumption of constitutionality
cannot be carried to the extent of always holding
that there must be some undisclosed and
22 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201122 / 28
unknown reasons for subjecting certain
individuals or corporations to hostile or
discriminating legislation.
The above principles will have to be constantly
borne in mind by the Court when it is called
upon to adjudge the constitutionality of any
particular law attacked as discriminatory and
violative of the equal protection of the laws.
(12) A close perusal of the decisions of this Court
in which the above principles have been
enunciated and applied by this Court will also
show that a statute which may come up for
consideration on a question of its validity under
Art. 14 of the Constitution may be placed in one
or other of the following five classes:-
(i) A statute may itself indicate the persons or
things to whom its provisions are intended to
apply and the basis of the classification of such
persons or things may appear on the face of the
statute or may be gathered from the
surrounding circumstances known to or brought
to the notice of the Court. In determining the
validity or otherwise of such a statute the
Court has to examine whether such
classification is or can be reasonably regarded
as based upon some differentia which
distinguishes such persons or things grouped
together from those left out of the group and
whether such differentia has a reasonable
relation to the object sought to be achieved by
23 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201123 / 28
the statute, no matter whether the provisions of
the statute are intended to apply only to a
particular person or thing or only to a certain
class of persons or things. Where the Court finds
that the Classification satisfies the tests, the
Court will uphold the validity of the law, as it did
in Chiranjitlal v. Union of India (B)(supra),
State of Bombay v. F. N. Balsara (C)(supra),
Kedar Nath Bajoria v. State of West Bengal, 1954
S C R 30: (A I R 1953 S C 404) (1), V. M. Syed
Mohammad & Company v. State of Andhra,
1954 S C R 1117: (A I R 1954 S C 314) (J) and
Budhan Choudhry v. State of Bihar (A) (supra).
(ii) A statute may direct its provisions against
one individual person or thing or to several
individual persons or things but, no reasonable
basis of classification may appear on the face of
it or be deducible from the surrounding
circumstances, or matters of common
knowledge. In such a case the Court will strike
down the law as an instance of naked
discrimination, as it did in Ameerunnissa Begum
v. Mahboob Begum, 1953 S C R 404: ( A I R 1953
S C 91) (K) and Ramprasad Narain Sahi v. State
of Bihar, 1953 S C R 1129: (A I R 1953 S C 215)
(L).
(iii) A statute may not make any classification
of the persons or things for the purpose of
applying its provisions but may leave it to the
discretion of the Government to select and
24 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201124 / 28
classify persons or things to whom its provisions
are to apply. In determining the question of
the validity or otherwise of such a statute the
Court will not strike down the law out of hand
only because no Classification appears on its
face or because a discretion is given to the
Government to make the selection or
classification but will go on to examine and
ascertain if the statute has laid down any
principle or policy for the guidance of the
exercise of discretion by the Government in the
matter of the selection or classification. After
such scrutiny the Court will strike down the
statute if it does not lay down any principle or
policy for guiding the exercise of discretion by
the Government in the matter of selection or
classification, on the ground that the statute
provides for the delegation of arbitrary and
uncontrolled power to the Government so as to
enable it to discriminate between persons or
things similarly situate and that, therefore, the
discrimination is inherent in the statute itself. In
such a case the Court will strike down both the
law as well as the executive action taken under
such law, as it did in State of West Bengal v.
Anwar, Ali Sarkar (D) (supra), Dwarka Prasad v.
State of Uttar Pradesh, 1954 S C R 803: (A I R
1954 S C 224) (M) and Dhirendra Kumar
Mandal v. The Superintendent and
Remembrancer of Legal Affairs, 1955-1 S C R
25 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-201125 / 28
224: (A I R 1954 S C 424) (N).
(iv) A statute may not make a classification of the
persons or things for the purpose of applying its
provisions and may leave it to the discretion of
the Government to select and classify the persons
or things to whom its provisions are to apply but
may at the same time lay down a policy or
principle for the guidance of the exercise of
discretion by the Government in the matter
of such selection or classification, the Court
will uphold the law as constitutional, as it did
in Kathi Raning Rawat v. The State of
Saurashtra (E) (supra).
(v) A statute may not make a classification of the
persons or things to whom their provisions are
intended to apply and leave it to the discretion of
the Government to select or classify the persons
or things for applying those provisions according
to the policy or the principle laid down by the
statute itself for guidance of the exercise of
discretion by the Government in the matter of
such selection or classification. If the
Government in making the selection or
classification does not proceed on or follow such
policy or principle, it has been held by this
Court, e. g., in Kathi Raning Rawat v. The State
of Saurashtra (E) (supra) that in such a case the
executive action but not the statute should be
condemned as unconstitutional.
We do not hesitate to say that the above referred
26 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
26 / 28
principles are followed till the date. What we are called upon to
examine in this case is the constitutional validity of the impugned
Sections 14A (1) and 14A (2) of the Act of 1935 on the
touchstone of the above referred principles.
On perusal of the above referred judgments and the
principles it is apparent that the Courts have frowned upon the
unfettered, unbridled and indiscriminate delegation of power
unguided by the legislative policy or principle to the executive or
some other agency. In the case before us that is the precise
challenge to the impugned Section 14A (1) and 14A (2) of the Act
of 1935.
Sub-section (1) of Section 14A of the Act of 1935
provides for election to the Managing Committees of societies to
be held by an authority created for the purpose. We are of the
opinion that the election of the Managing Committee of a society
by an authority created for the purpose in a particular manner is a
mere procedure. Nobody has a vested right to procedure. In the
present case, Section 14A (1) provides that the election of the
Managing Committee of the societies notified under the said sub-
section (1) be conducted by the authority created for the purpose.
Such authority is created under the Act 14 of 2008. The Act 14 of
2008 also provides for the manner in which such election shall be
conducted.
Sub-section (1) of Section 14A of the 1935 Act
insofar as it provides that the election of the Managing
Committees of the notified societies be held by the authority
created for the purpose (Election Authority created under the Act
14 of 2008) and sub-section (2) of Section 14A of the Act insofar
as it provides that after the date of the Notification issued under
sub-section (1) of Section 14A of the Act, the election of the
27 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
27 / 28
Managing Committees of such notified societies be held in the
manner provided in the said Sections 14A (1) and 14A (2) of the
Act; being procedural do not violate any of the rights accrued to
the writ petitioners. Nor the said provisions contravene the
Constitution. We, therefore reject the challenge to the
constitutional validity of Section 14A (1) of the Act of 1935
insofar as it provides that the election of the Managing Committee
of the societies notified under the said sub-section be conducted
by the authority crated for the purpose. We also reject the
challenge to the constitutional validity of sub-section (2) of
Section 14A of the Act of 1935.
We, however, agree with Mr. Giri that sub-section
(1) of Section 14A of the Act of 1935 insofar as it provides that
the societies notified under the said sub-section be governed by
the provisions contained in the said Section 14A of the Act of
1935 gives away excessive power to the executive. It is a classic
case of excessive delegation of power talked about by the Hon‟ble
Supreme Court in the matters of Ram Krishna Dalmia, (A.I.R.
1958 S.C. 538) and of M/s Devi Das Gopal Krishna, (A.I.R. 1967
S.C. 1895). In our opinion, the State Legislature has, while
conferring power upon the executive to notify a class or classes of
registered societies to be governed by the said Section 14A of the
Act of 1935, failed to provide any guideline or a principle
according to which the executive may exercise the power
conferred by sub-section (1) of Section 14A of the Act of 1935.
The said sub-section indeed confers an unguided, unfettered and
indiscriminate power upon the executive to bring any society or a
class or classes of society within the purview of the said Section
14A of the Act. The Legislature ought to lay down some
legislative policy or guiding principle for the executive to follow.
28 Patna High Court CWJC No.7581 of 2008 (16) dt.23-09-2011
28 / 28
We, therefore, hold that sub-section (1) of Section 14A of the Act
of 1935 insofar as it confers power upon the Government
(executive) to bring a class or classes of registered societies within
the purview of the said Section by notification in the Official
Gazette is hit by the principle of excessive delegation of power
and is vitiated on that ground.
In view of the above discussion, we set aside sub-
section (1) of Section 14A of the Act of 1935 insofar as it
empowers the Government to bring the election of the Managing
Committees of a class or classes of registered societies within the
purview of the authority created for the purpose by notification in
the Official Gazette as unconstitutional. Consequently, the
impugned Notification dated 1st May 2008 issued by the State
Government and the impugned orders dated 1st May 2008 and 9th
May 2008 made by the Registrar, Co-operative Societies, Bihar
are quashed and set aside. The writ Petitions stand allowed to the
aforesaid extent only. Interlocutory Application stands disposed
of.
The parties will bear their own cost.
(R.M. Doshit, CJ)
Jyoti Saran, J.
I agree.
(Jyoti Saran, J)
Pawan/-
A.F.R.