1971 Supreme(P&H) 171

PUNJAB & HARYANA HIGH COURT
A.D.Koshal, J.
Harbhajan Singh
Versus
State Of Punjab
Civil Writ No. 978 of 1970,
Decided On : SEPTEMBER 9, 1971

The expression "has served" occurring in sub-section (2) of Section 26-B of the Punjab Co-Operative Societies Act, 1961 meant that the act of serving had already been completed or it was done and may be (but not necessarily is) continuing.

Headnote:

CO-OPERATIVE SOCIETIES - ELECTION TO COMMITTEE - INELIGIBILITY - SERVICE ON COMMITTEE FOR CONTINUOUS PERIOD OF NOT LESS THAN SIX YEARS - INTERPRETATION OF SUB-SECTION (2) OF SECTION 26-B OF THE PUNJAB CO-OPERATIVE SOCIETIES ACT, 1961 - WHETHER SERVICE AS NOMINATED OR CO-OPTED MEMBER TO BE COUNTED - WHETHER PERIOD OF ILLEGAL CONTINUANCE AS MEMBER TO BE COUNTED - WHETHER ALTERNATIVE REMEDY OF ARBITRATION AVAILABLE - WHETHER WRIT LIES AGAINST OFFICER OF CO-OPERATIVE DEPARTMENT IN RELATION TO AFFAIRS OF PRIVATE CO-OPERATIVE SOCIETY - WHETHER SOCIETY A NECESSARY PARTY TO PROCEEDINGS FOR QUASHING ELECTION OF MEMBER OF COMMITTEE.

Fact of the Case:

Petitioner challenged the election of respondent No. 4 to the Executive Committee of the Janta Co-Operative Sugar Mills Limited, Bhogpur (Mills) on the ground that respondent No. 4 had already served on the Board for a period of more than six years and was, therefore, ineligible for election according to the provisions of sub-section (2) of Section 26-B read with clause (b) of Section 2 of the Punjab Co-Operative Societies Act, 1961 (Act). Respondent No. 3, the Returning Officer, rejected the objection and accepted the nomination papers of respondent No. 4. The petitioner filed a petition under Articles 226 and 227 of the Constitution of India seeking a writ of certiorari quashing the order of respondent No. 3 and declaring the election of respondent No. 4 to be null and void.

Finding of the Court:

The court held that the interpretation placed by respondent No. 3 on sub-section (2) of Section 26-B of the Act was wholly mis-conceived. The court held that the expression "has served" occurring in sub-section (2) of Section 26-B of the Act meant that the act of serving had already been completed or it was done and may be (but not necessarily is) continuing. The court further held that the entire period for which respondent No.4 served as a Director on the Board would be counted towards the period of not less than six years without reference to the manner in which he became a member, i.e., whether by election, nomination or co-option. The court also held that the period from 11-10-1963 to 13-6-1964 could not be counted as part of the period of "not less than six year" mentioned in sub-section (2) inasmuch as in between those to dates his continuance as a member of the Board was illegal, it not having behind it the sanction of any provision of the Act or the Rules or the bye-laws governing the Mills. The court further held that the petition should not be thrown out on the short ground that an alternative remedy was open to the petitioner by way of arbitration proceedings under Section 55 of the Act. The court also held that the Mills was a private body and that, therefore, no writ should be issued in relation to its affairs. The court further held that the Society not being a party to these proceedings, the petitioner was not entitled to a writ.

Issues: 1. Whether the interpretation placed by respondent No. 3 on sub-section (2) of Section 26-B of the Act was correct? 2. Whether the service as nominated or co-opted member to be counted towards the period of ineligibility? 3. Whether the period of illegal continuance as member to be counted towards the period of ineligibility? 4. Whether alternative remedy of arbitration available? 5. Whether writ lies against officer of Co-operative Department in relation to affairs of private co-operative society? 6. Whether Society a necessary party to proceedings for quashing election of member of Committee?

Ratio Decidendi: 1. The court held that the interpretation placed by respondent No. 3 on sub-section (2) of Section 26-B of the Act was wholly mis-conceived. The court held that the expression "has served" occurring in sub-section (2) of Section 26-B of the Act meant that the act of serving had already been completed or it was done and may be (but not necessarily is) continuing. The court further held that the entire period for which respondent No.4 served as a Director on the Board would be counted towards the period of not less than six years without reference to the manner in which he became a member, i.e., whether by election, nomination or co-option. 2. The court held that the service as nominated or co-opted member to be counted towards the period of ineligibility. 3. The court held that the period of illegal continuance as member to be counted towards the period of ineligibility. 4. The court held that the petition should not be thrown out on the short ground that an alternative remedy was open to the petitioner by way of arbitration proceedings under Section 55 of the Act. 5. The court held that the Mills was a private body and that, therefore, no writ should be issued in relation to its affairs. 6. The court held that the Society not being a party to these proceedings, the petitioner was not entitled to a writ.

Final Decision: The petition was allowed. The impugned order was quashed and the election of respondent No.4 to the Board was declared null and void.