TMI Blog1999 (7) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners in both these writ petitions, namely, Nand Parkash Vohra, Prem Lal and Deepak Sharma and set aside the elections to the Managing Committee of respondent No. 5 the Bilaspur Truck Operators Co-operative Transport Society Ltd. (hereinafter called 'the Society') held on 25-5-1998, in which respondent No. 6 Jagdish Shankhyan was elected as President, who further nominated respondents Nos. 7 and 8 Sunder Lal Dogra and Balak Ram as Vice-President and Cashier respectively besides other members of the Managing Committee. 2. It is not in dispute that the petitioners and respondents 6 to 8 are the members and shareholders of the Society, which is a primary Co-operative Society registered under the Himachal Pradesh Co-operative Societies Act. 1968 (hereinafter called 'the Act'). After completion of normal tenure of the Managing Committee of the Society its elections were scheduled to be held on 25-5-1998 but on that date the election only to the post of the President was held and respondent No. 6 Jagdish Shankhyan was elected as President. The contest for the post of the President was between petitioner Nand Parkash Vohra and respondent No. 6 Jagdish Shankhya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also held that the elections to the posts of Vice-President, Cashier and other Office-Bearers as well as Members of the Managing Committee were required to be held simultaneously with the post of the President in accordance with law and General House could not authorise the President to make nominations for these posts. So far the objection that non- members and/or ineligible members had cast their votes is concerned, it did not find favour with the Arbitrator for the reason that no such objection was raised by the petitioners on the spot. 4. The award dated 26-10- 1998 of the Arbitrator was challenged by respondents Nos. 6 to 8 by filing appeal under Section 93(2)(b) of the Act before the Registrar, who by his order dated 31-10-1998 stayed the operation of the impugned award during the pendency of the appeal (Annexure P-11) and thereafter allowed the appeal by order dated 27-12-1998 (Annexure P-15) holding that having signed the election results, which were recorded in the Minutes of the General House Proceedings Whereby certifying that voting had taken place to his satisfaction, petitioner Nand Parkash Vohra was estopped to challenge the election on the ground that ineli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the proceeding book on which later on the alleged certificate was interpolated, cannot be accepted. Had it been so, he would have pointed it out at his earliest or at the latest in his election petition filed on 19-6-1998. It is not in dispute that election was conducted under the supervision of District Inspector of Co-operative Societies, Bilsapur. who along with Mr. Devi Ram, District Audit Officer and Mr. Gopal Dass Garg, Inspector (Head Quarter) was present to ensure that the election was held in accordance with law, to whom the petitioners could raise these objections, which shows that these are afterthoughts to challenge the election. 8. Respondent No. 9 Ram Dass Thakur, who was Chairman of the Meeting to the General House in which election was held, has also not recorded the objections of the petitioner alleged to have been raised during the course of the Meeting. Though, in his reply- affidavit(s) before the Deputy Registrar, Co-operative Societies, Central Division, Mandi as well as before this Court he has supported the petitioner but in the absence of any contemporaneous material on record it is of no use. The proper course far him was to sign the proceedings aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing nor on the completion of the counting there was any valid ground available for the recount of the ballot papers. A cryptic application claiming recount was made by the petitioner- respondent before the Returning Officer. No details of any kind were given in the said application. Not even a single instance showing any irregularity or illegality in the counting was brought to the notice of the Returning Officer. We are of the view when there was no contemporaneous evidence to show any irregularity or illegality in the counting. Ordinarily, it would not be proper to order recount on the basis of bare allegations in the election petition. We have taken through the pleadings in the election petition. We are satisfied that the grounds urged in the election petition do not justify for ordering recount and allowing inspection of the ballot papers. It is settled proposition of law that the secrecy of the ballot papers cannot be permitted to be tinkered lightly. An order of recount cannot be granted as a matter of course. The secrecy of the ballot paper has to be maintained and only when the High Court is satisfied on the basis of material facts pleaded in the petition and supported by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members also with an opportunity to be heard if they desires to be heard. Notice to individual members of a co- operative society, in our opinion, is opposed to the very status of a co- operative society as a body corporate and is, therefore, unnecessary. We do not consider it necessary to further elaborate the matter except to point out that a member who objects to the proposed amalgamation within the prescribed time is given, by Section 31(11) the option to walk out. as it were, by withdrawing his share, deposits or loans as the case may be. 13. We have no hesitation to hold that these observations of learned Judges of the Supreme Court were made in a different context and are not attracted in the present case. So far the legal proposition held in Munshi Rain v. State of Punjab 1974 PLJ 22 and Managing Committee Dhagana Cooperative Society v. Sarabjit Singh Sandhu 1975 PLJ 481 (supra) is concerned, we will examine whether the election was held in violation of mandatory provisions of law and can be treated as non est. So far alternative submission made on behalf of the petitioners is concerned that since three of the Office-Bearers i.e. President, Vice-President and Cashier be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be prescribed or as may be specified in the bye-laws of the society; Provided further that nothing in this section shall affect any power conferred on a committee or any officer of a co- operative society by the rules or the bye-laws. 32. Annual General Meeting:-- (1) A general meeting of every society shall be held once at least in every co-operative year for the purpose of- .. (b) election, if any, in the prescribed manner of the members of the committee other than the nominated members; 34. Managing Committee:-- The management of every society shall vest in a managing committee constituted in accordance with the rules and the bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively by this Act, the rules and the bye- laws. 72. Dispute which may be referred to arbitration:-- (1) Notwithstanding anything contained in any law for the time being in force. In any dispute touching the constitution, management, or the business of a co-operative society arises. ....... (2) For the purposes of Sub- section (1) the following shall be deemed to be disputes touching the constitution, management, or the business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from amongst the members of the society at the annual/special general meeting; (b) appointment by the Registrar in the manner provided in the Rule 39; (c) nominees of the Government under Section 35 of the Act; and (d) nominees of the other Co-operative Societies as provided in the bye-laws. (2) The managing committee of the society shall have not less than five nor more than twenty-one members, including the Government nominee as may be fixed in the bye-laws. (3) The terms of the Managing Commit- tees constituted under Sub-rule (1) shall be- (a) in relation to Primary Societies . . . 2 years; (b) in relation to secondary societies ... 3 years; and (c) in relation to Apex Societies ... 4 years; Provided that the outgoing managing committee shall, unless the State Government otherwise directs, continue to function till another Managing Committee is constituted under these rules;. ..... (4) The committee shall, as soon as may be possible, elect from among its members a President, Vice-President and such other officers as are specified in the bye-laws unless they provide for such election by general meeting. .. (6) Any dispute relating to the election to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd members appointed by the Registrar, if any. 18. Sub-rule (4) of Rule 38 of the Rule makes it clear that after the constitution of the Managing Committee its Members elect a President. Vice- President and such other officers as are specified in the bye-laws unless they provide for such election by general meeting. On our asking learned counsel appearing for the Society has placed on record its Model Bye- Laws. Bye-law 30 provides that Managing Committee of the Society consists of not less than 21 members. Bye-law 31 provides for eligibility for election as Member of the Managing Committee of the Society, whereas. Bye-law 33 provides when a Member of the Managing Committee shall cease to hold office. There is no bye-Jaw under which it is provided that elections of the President, Vice- President and other Office- Bearers of the Managing Committee can be held simultaneously with the election of the Members of the Managing Committee. From all these provisions it is clear that General Body will elect the Members of the Managing Committee, who from amongst themselves will elect President, Vice-President and other Office-Bearers of the Managing Committee. Learned Additional Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming and adopting its own code of conduct in the form of bye-laws, which are to be duly approved by the Registrar, has not made any provision for removal of the Chairman and Vice-Chairman by passing a vote of no-confidence, it cannot be said that the step taken by the Society or Registrar in that behalf is not a regulatory one nor is in the interest of the society or the general public. The so-called mandate theory can not be pushed to ridiculous extremes to convert co-operative movement into an arena or akhada of power politics. Whenever the legislature thought that a person is not fit to continue as a member of the Board, specific provisions are made for his removal. A person is elected as Chairman or Vice-Chairman for a particular term. His office is controlled by the provisions of the Act. ...... 20. While interpreting almost similar provisions in Bapauli Co-operative Agricultural Service Society v. State of Haryana, AIR 1976 Punj Har 283, the learned Judges of the Punjab and Haryana High Court have also held in paragraph 18 of the judgment:-- The final authority in a co-operative society does of course vest in the general body of its members or its managing body elec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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