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1981 Supreme(Ori) 30
Orissa High Court
R. N. MISRA, C.J. AND B. N. MISRA, J.
Kinigam Service Co-operative Society - Appellant
Versus
Deputy Registrar, Co-operative Societies - Respondents
O.J.C. No.221 of 1981
Decided On : 19 March 1981
Y.S.N. Murty, Y.S.R. Murty and D.P. Choudhury, for Petitioner; Advocate General and Addl. Standing Counsel (for No. 1) and A.S. Naidu (for No. 2), for Opposite Parties; B.B. Rath, J.K. Das and R.N. Acharya, for Intervenors.
The procedure prescribed for the amendment of bye-laws under Section 12 (5) and (6) of the Orissa Co-operative Societies Act, 1962 and Rule 14-A of the Orissa Co-operative Societies Rules, 1963 must be strictly followed, and failure to comply with the statutory requirement should be seriously viewed.
Headnote:
CO-OPERATIVE SOCIETIES - AMENDMENT OF BYE-LAWS - PROCEDURE - SECTION 12 (5) AND (6) OF THE ORISSA CO-OPERATIVE SOCIETIES ACT, 1962 - RULE 14-A OF THE ORISSA CO-OPERATIVE SOCIETIES RULES, 1963 - INTERPRETATION AND APPLICATION - REASONABLE OPPORTUNITY OF HEARING - ULTRA VIRES - WRIT OF CERTIORARI.
Fact of the Case:
The petitioner, a Service Co-operative Society, challenged the order of the Deputy Registrar of Co-operative Societies registering an amendment to Bye-law No. 30 (ii) (a) of the Berhampur Co-operative Central Bank Limited, alleging that the procedure prescribed for the amendment had not been followed and that a reasonable opportunity of hearing had not been granted.
Finding of the Court:
The Court found that the notice issued by the Deputy Registrar did not conform to the requirement of Rule 14-A (1) of the Orissa Co-operative Societies Rules, 1963, as it did not call upon the committee of the society to convene a general meeting to consider the amendment. The Court also found that sub-rule (3) of Rule 14-A, which provided for hearing the committee of the society, was ultra vires the Act as it was inconsistent with the provision of Section 12 (6) of the Act, which required a reasonable opportunity of being heard to be given to the society.
Issues: 1. Whether the notice issued by the Deputy Registrar conformed to the requirement of Rule 14-A (1) of the Orissa Co-operative Societies Rules, 1963? 2. Whether sub-rule (3) of Rule 14-A was ultra vires the Act? 3. Whether a reasonable opportunity of hearing had been granted to the society?
Ratio Decidendi: 1. The Court held that the notice issued by the Deputy Registrar did not conform to the requirement of Rule 14-A (1) of the Orissa Co-operative Societies Rules, 1963, as it did not call upon the committee of the society to convene a general meeting to consider the amendment. 2. The Court held that sub-rule (3) of Rule 14-A, which provided for hearing the committee of the society, was ultra vires the Act as it was inconsistent with the provision of Section 12 (6) of the Act, which required a reasonable opportunity of being heard to be given to the society. 3. The Court held that a reasonable opportunity of hearing had not been granted to the society as the committee had appeared before the Deputy Registrar and had asked for an adjournment for availing the opportunity of hearing, which was rejected.
Final Decision: The Court allowed the writ petition and quashed the order of the Deputy Registrar registering the amendment to Bye-law No. 30 (ii) (a) of the Berhampur Co-operative Central Bank Limited by issuing a writ of certiorari.
Judgement
MISRA, C.J. :- Challenge in this application under Article 226 of the Constitution is to the order dated 5-12-1980 in Annexure-3 passed by the Deputy Registrar of Co-operative Societies (opposite party No. 1 herein) in purported exercise of powers under Section 12 (6) of the Orissa Co-operative Societies Act, 1962 (hereinafter referred to as the Act ) registering an amendment to the Bye-law No. 30 (ii) (a) of the Berhampur Co-operative Central Bank Limited (hereinafter referred to as the Bank), opposite party No. 2.
2. The short facts relevant for appreciating the contentions advanced before us and for disposal of the writ application are these :-
The petitioner is a Service Co-operative Society registered under the Act while the Bank is a Central Society also registered under the same Act, and the petitioner is affiliated to the said Central Society. The Bank had its Byelaws duly registered by the Registrar under the Act. Bye-law No.30 (i) made provision for management and prescribed that the management of the Bank shall vest in a committee consisting of 15 members. The area of operation of the Bank was divided into 10 election zones as indicated in sub-rule (ii) (a).
On 31-1-1981 the petitioner received a notice dated 29-1-1981 from the opposite party No. 1 calling the general body meeting for election of the Committee of Management which also contained the election programme. Upon enquiry, the petitioner found that the opposite party No. 1 had amended the Bye-law No. 30 (ii) (a) of the Bank and had changed the zonal arrangement contained therein. The petitioner-Society gathered, upon enquiry, the information that the opposite party No. 1 - Deputy Registrar had issued a notice D/- 3-11-1968 (Annex. 2) to the Secretary of the Bank requiring him in exercise of powers under Section 12 (5) of the Act read with Rule 14-A of the Rules made thereunder to amend the Bye-law No. 30 (ii) (a) in the manner indicated in the enclosure to the notice and to submit the amendment proposal to him within 30 days from the date of issue of the notice for registration of the amendment. In the very notice it was further stated that-
"The Secretary of the Bank may appear before the undersigned on 5-12-1980 at 11 A. M. in my office for hearing in pursuance of Section 12 (6) of the Orissa Co-operative Societies Act. 1962."
The General Body meeting of the Bank was not convened to consider the proposal for amendment. The Committee of Management appeared before the Deputy Registrar on 5-12-1980 and wanted time for filing objection against the proposed amendment. The petition for time was rejected and the Deputy Registrar under Annexure-3 passed the impugned order running thus :-
"In, exercise of powers conferred upon me u/s. 12 (6) of the Orissa Co-operative Societies Act, 1962, I, Sri S. Swain, Deputy Registrar, Co-operative Societies, Berhampur Division, Berhampur, do hereby register the amendment to Byelaw No. 30 (ii) (a) of the Berhampur Co-operative Central Bank Limited, Regd. No. J. 395, as shown in the aforesaid documents and do hereby sign a certificate of registration of such amendment."
The petitioner challenges the impugned order by contending that-
(1) The amendment to Bye-laws can be made only by members at a meeting of the Central Body of the members of the Society, and even for amendment. Under direction of the Registrar the General Body meeting had to be convened :
(2) The notice under Annexure-2 is vitiated in law as the provisions of Rule 14-A had not been complied with. The direction in the notice should have been to convene a General Body meeting for the purpose of considering the amendment;
(3) A reasonable opportunity of being heard had not been given to the Society. Therefore, action under Section 12 (6) of the Act could not be taken and
(4) The action of the Deputy Registrar, who is no other than a nominated member of the Committee of Management of the Bank is also otherwise vitiated.
3. A counter-affidavit has been filed by the oppo
