RAMZAN ANSARI Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Mr. Y.V. Giri for the petitioners, and Mr. P.K. Shahi, learned Advocate General for the respondents. The petitioners press this interlocutory application with the prayer to direct respondent no. 2 (The Registrar, Cooperative Societies, Bihar, Patna), to notify the election programme to hold special general meeting/election of Chairman and Members of the Board of Directors of Bihar State Cooperative Marketing Union (BISCOMAUN for short) in the circumstances, indicated therein, and also in view of the orders dated 15.5.2008, and 30.6.2008, passed on the present writ petition.

(2.) BISCOMAUN is a cooperative society registered under the Bihar Cooperative Societies Act, 1935 (hereinafter referred to as 'the Act '). It is "apex society" whithin the meaning of Rule 2(ix) of the Bihar Cooperative Societies Rules, 1959 (hereinafter referred to as 'the Rules '). A large number of Primary Agricultural Credit Societies (hereinafter referred to as 'PACS '), within the meaning of Rule 2(gggg) of the Act at the base level, and a large number of "Central Society" within the meaning of Rule 2(xi) of the Rules (also known at some places as Vyapar Mandal) at the intermediate level, are affiliated to BISCOMAUN. In other wordes, a large number of PACS at the base level, and a large number of Central Societies (Vyapar Mandal) at the intermediate level, are affiliated to the apex body, and is pyramidal in structure. The entire network is governed by the provisions of the Act and the Rules and its day - to -day affairs are governed by its bye -laws. Elections are initially held to constitute PACS. The elected members of PACS, in their turn, elect the members of the intermediate bodies who constitute the electoral college for election of the Managing Director and the Members of the Board of Director of the apex body. The Bihar Legislature enacted the Bihar Coopertive Societies (Amending) Act, 2008 (hereinafter referred to as the Amending Act), making amendments in the Act. The Amending Act inserted Section 14(A)(1) in the Act, making provision for election to the managing committees of registered societies under the Act. Section 14(A)(1)(2) of the Act provides that election to the managing committees of such registered societies shall, after the date of such notification, be held in terms of the provisions of the Act even if the proposed election has commenced, but the results of such election have not been declared prior to that date. Section 14(A)(3) provides that election to the Managing Committee of registered societies shall be held within six months from the date of such notification which may further be extended for a period of six months. In other words, the election must be over within a period of one year from the date the amendment has been enforced. It is relevant to state that the Amending Act was enforced with effect from 30.4.2008. Section 14(A)(4) of the Act makes arrangements for the interregnum. The newly inserted Section 14A is reproduced hereinbelow for the facility of quick reference: - "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, 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 or 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 anything 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 (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 term 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 earlier managing committee alongwith 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 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." 3.1) The Amending Act amends Section 44AQ of the Act. Sub -section (2) of Section 44AQ of the Act shall be substituted by Section 2(a) which, inter alia, provides that, for the purpose of development of agriculture, area of each PACS shall be coextensive with that of a Panchayat, and there will be only one such society in each Panchayat. The newly substituted provision is reproduced hereinbelow for the facility of quick reference: - "(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 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." The newly inserted sub -section (3) provides for an automatic transfer of membership of the quondam cooperative societies to the newly constituted cooperative societies under the Act. The amendment is reproduced hereinbelow for the facility of quick reference: - "(3) Notwithstanding anything contained in this Act, the society or societies which are reorganized under sub -section (2) alongwith 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 Government may from time to time, declare a moratorium on the liabilities of the new society/ societies created under sub -section (2) of this Section."

(3.) THE Bihar Legislature has also enacted the Bihar State Election Authority Act, 2008 (Act 14 of 2008) (hereinafter referred to as the 'Election Act '), which provides the machinery and the personnel to conduct elections to the cooperative societies in Bihar. The Election Act has constituted the State Election Authority to conduct election for all cooperative societies in Bihar including BISCOMAUN. The State Election Authority, as contemplated by sub -sections (1) and (3) of Section 3 of this Act, has been constituted by notification published in the Bihar Gazette Extraordinary Issue, dated 13.5.2008. The Chief Election Officer contemplated by Section 3(3) and Section 3(4) of this Act has been appointed, vide notification published in the Bihar Gazette Extraordinary Issue, dated 17.5.2008. The District Returning Officer, and the Deputy District Returning Officers, have been appointed by notification dated 24.12.2008. The Chief Election Officer has issued notification no. 167, dated 24.12.2008, notifying preparation of the electoral roll for the cooperative societies at the base level.