MOHAN MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioners No.2, Patsara Tepari Primary Agiculture Credit Co-operative Society Limited, is a registered society, affiliated to the Muzaffarpur Central Co-operative Bank Limited, the district level society (hereinafter called 'Central Co-operative Bank'), while petitioner No. 1 Mohan Mishra is its member. On expiry of the term of the members and officebearers of the Managing Committee of the said Central Co-operative Bank, steps were taken for constitution of a new Managing Committee and on 24.8.94 the election programme was announced. In accordance with the said programme the list of the members was published and objections were invited. After disposal of objections, the voter list was prepared and published. The representatives of the Primary Agriculture Credit Co-operative Societies being members of the said Central Co-operative Bank including petitioner No.l filed their nomination papers. After the process of withdrawal and scrutiny was over a final list of candidates was published on 20.9.94. On 24.9.94 the Sub-divisional Officer, Muzaffarpur East, as the Election Officer, wrote letter to the District Magistrate, Muzaffarpur, who happens to be the Administrator of the said Central Co-operative Bank and is also vested with the powers to organize elections in respect of the district level co-operative societies, seeking necessary instructions in the light of the amended by-laws of the said Central Co-operative Bank. He pointed out in the letter that in terms of the third proviso to bye-law 29 representatives of the primary societies owing dues of more than 60 per cent (to the Bank are not eligible to seek election as delegate/office-bearers/Directors of the Bank. In other words, according to the Sub-divisional officer, the voter list had not been prepared in accordance with the Bye- laws. The petitioners filed the present writ petition No.3.10.94 challenging the validity of the said letter dated 24.9.94, copy whereof is at Annexure-9 to the writ petition, as well as the vires of the third proviso to by-law 29 of the Bye- laws (wrongly mentioned as second proviso in the writ petition).

(2.) By-law 29 provides for composition of the Board of Directors (Managing Committee) consisting of 17 Directors. The by-law originally contained two provisos. In terms of the first proviso, representative/delegates of the primary/affiliated societies or individual shareholders is ineligible for election as Director of office-bearers "If he is a defaulter or otherwise disqualified under the provisions of the Act, Rules and the bye- law in force." I am skipping the second proviso as it has no relevance in this case. The impugned proviso was added by way of compulsory amendment, by the Registrar, under Section 26 (2) of the Bihar Co-operative Societies Act, 1935 on 1.8.88 to the following effect:-

(3.) The impugned proviso, thus, creates a new type of ineligibility. While the first proviso disqualifies the representatives/delegates of the affiliated societies or individual shareholders to seek election as Director of officebearer of the managing committee (Board of Directors) of the Bank or if they personally are defaulters or otherwise disqualified, the third proviso makes them ineligible if the affiliated society, which they represent, is defaulter to the extent of more than 60% of the dues to the Bank, even though personally they are not defaulters. Thus, two types of default and the consequential disqualification-One attached to the individual and the other attached to the affiliated society-are now provided. While in the case of former, the disqualification is absolute, that is, irrespective of the amount of dues or default, in the case of latter, it is so if the due exceeds 60%. In other words, if the due of the primary affiliated society is less than 60%, its representatives or delegates would not suffer from such disqualification. The proviso further provides that the delegates/representatives, in office, shall cease to hold office if during currency of their term the due to the Bank exceeds 60%. It is the validity of this new proviso which has come in for frontal challenge in the present writ-petition.