1973 Supreme(MP) 99

High Court Of Madhya Pradesh
P. K. Tare, C. J. , Shiv Dayal and R. K. Tankha, JJ.
THE COLLECTIVE FARMING SOCIETY LTD. - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 559 Of 1973
Decided On : 10/08/1973

Headnote:(1) Co-operative Societies Act, 1960 (MP) - S. 91 - vires of - delegation of powers to the State Government is conversant with principles of co operative movement - relaxing outside limit for super-session - is not ultra vires - Constitution of India - Art. 245.

       Section 91 of the Act is couched in such wide terms that it appears to confer uncontrolled and unchanalised powers. The words "such provisions shall apply to such society or class of societies with such modifications" followed by the words "as may be specified in the order" confer widest possible discretion. Left to the section itself, it can well be challenged as conferring despotic or arbitrary power. Further it is expressive of a mere subjective test. The section does not lay down any criteria or standards on the basis of which the State Government may pass an order under section 91 either with regard to exemption or with regard to modifications. If that was all, the section would have been struck down as unconstitutional and violative of Article 245 of the Constitution. [Para 8

       But it must be remembered that co operative movement has a well established policy and principle. It is a national movement. It is recognised and practised in almost all the States and there are corresponding enactments there. Section 91 confers power on the State Government, which is full conversant with the principles of co-operative movement. [Para 17

       What society or class of societies may be exempted from the operation of or any of the provisions of the Act is not a question of policy. It is not an essential function of the legislature; it depends on the local conditions. Therefore, if the legislature delegated that power to an authority, not less than the State Government, it cannot be said to be its effacement, nor abdication of its essential legislative function. The delegation was of a secondary or ancillary legislative function, which is non-essential. [Para 21

       If the State Government, in exercise of its delegated power under section 91 of the Act, relaxed the outside limit for super-session, which is prescribed in the proviso to section 53, it cannot be said to be ultra vires. Section 53 itself contains the standards and guide-lines for super-session. [Para 30

       (2) Co-operative Societies Act, 1960 (M.P.) - Ss. 53 and 91 - power to refax maximum time limit under section 53 - is function of the Government - super-session to be done by the Registrar.

       The Government may in the exercise of powers under section 91 of the Act, relax the outside limit prescribed in the proviso to section 53 (3) of the Act and grant sanction to the competent authority to extend the period of super-session beyond three years and to the extent specified in the order.

       Mere relaxation of the outside limit cannot extend the period of super-session. For this purpose a specific order has to be passed by the competent authority, that is, the Registrar.

       Where the State Government relaxed the maximum time limit of super-session and having said in the order that it accords sanction or approval, and no order to extend the period was passed by the competent authority, the super-session is terminated. 1971 JLJ 924 approved. [Para 33

       (3) Words and Phrases - word Lohd`fr - meaning of.

       The word Lohd`fr is authorised Hindi equivalent of the word 'admit'.

       The word Lohd`fr is then a second equivalent of 'accept', 'approve' 'sanction’.

       The word Lohd`fr is not the appropriate standard or authorised equivalent of 'sanction'; it is eUtwjh. [Para 33

       (4) Co-operative Societies Act, 1960 (M.P.) - S 53 (1) - word 'person' - included a Co-operative Society - General Clauses Act, 1957 (M.P.) - S. 3 (42).

       There is nothing to show that the inclusive definition of "person' given in section 3 (42) of the M.P. General Clauses Act, will be repugnant to the context of section 53 (1) of the M.P. Co-operative Societies Act. Even a corporate body is within the meaning of the expression 'person or persons' as employed in section 53 (1). [Para 39

       (5) Meetings - election - should be according to the law - procedure laid down not followed - election not valid.

       (6) Co-operative Societies Rules, 1962 (MP) - R. 41 - procedure prescribed for election not followed - election void.

       It was conceded that the procedure laid down in Rule 41 was not followed. What was done was one fine morning all the members assembled and held the election. The persons so elected cannot be held to be validly elected. [Para 41

       (7) Constitution of India - Art. 245 - delegation of legislative power - how far permissible - powers of the Courts.

       (8) Constitutional law - delegation of legislative powers - how far permissible - powers of the Courts.

       The law on this point may be summed up as follows:-

       (i) When the legislatures enact laws to meet the challenge of the complex socio-economic problems, they often find convenient and necessary to delegate subsidiary or ancillary powers to delegates of their choice for carrying out the policy laid down by the Acts. In view of multifarious activities of a welfare State they 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 another agency.

       (ii) The legislature cannot abdicate essential legislative functions in favour of another authority.

       (iii) The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct.

       (iv) The power to make subsidiary or ancillary legislation may be entrusted by the legislature to another body of its choice.

       (v) While so delegating, the legislature should enunciate, either expressly or by implication, the policy, principles or standards for the guidance of the delegate in exercising such delegated power.

       (vi) Uncontrolled entrustment of power without guidance amounts to excessive delegation of legislative authority.

       (vii) The legislature cannot delegate to the executive the power to make exemptions from the operation of an Act, without laying down the policy for guidance of the latter.

       (viii) As a delegated power, 'modification' does not mean or involve any change of policy but is confined to alteration of such a character which keeps the policy of the Act intact and introduces such changes as are appropriate to local conditions of which the executive Government is made the judge.

       (ix) Where unguided discretion is conferred by the statute on the executive; the legislation need not be struck down; the Court should examine the principles and policy of the statute. Whether guidance has been given may depend upon the consideration of the provisions of the particular Act with which the Court has to deal including preamble.

       (x) If the delegated authority makes on order in contravention of the standards laid down in the section or contrary to the legislative policy found in the provisions of the Act, as the case may be, the order of the delegate must be struck down, but not the section. The question is justiciable. [Para 42

       (9) Constitutional Law - retrospective legislation - powers delegated to an authority - when may be exercised retrospectively.

       It is only a sovereign legislature which can enact a law with retrospective operation. The parliament can delegate its legislative power within the recognised limits. Where powers are delegated by the legislature to a person or authority, it will depend upon the language employed in the statutory provision, which delegates such power, whether it has empowered, in express terms or by necessary implication, such person or authority to exercise that power with retrospective effect. But where no such language is to be found, the person or authority exercising delegated legislative functions, cannot make order, which can operate with retrospective effect. When power is delegated to an authority by the legislature such authority has no power to exercise it with retrospective effect.

       (10) Co-operative Societies Act, 1960 (M.P.) - Ss. 53 and 91 - extension of period prescribed in section 53 - cannot be done retrospectively. [Para 37

       (11) Co-operative Movement - guiding principles. [Para 18