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The Hassan Co-Operative Milk Producers Societies Union Limited Versus State Of Karnataka

2014 (4) TMI 1210 - KARNATAKA HIGH COURT

Validity of Section 28-A(4) of the Karnataka Cooperative Societies Act, 1959, as substituted by the amended Act dated 11.02.2013 - retrospectivity or prospectivity - Held that:- having regard to the language employed in the Amending Act No. 3 of 2013 and the Act of 2011 (97th Amendment to the Constitution) we are satisfied that by necessary implication/intendment the amended provision would operate retrospectively and as a result thereof, term of all the boards shall stand extended till expiry o .....

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s shall continue to hold office till expiry of the period of five years from the date of their elections and till then, no administrator shall be appointed and the elected board shall take charge only on expiry of the term of office of the members of the board. In view thereof, the communication dated 29.01.2014, impugned in the writ petitions is rendered ineffective. The writ appeals are accordingly disposed of in terms of the opinion expressed by us in this judgment. - W.A. Nos. 734, 780-784, .....

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, Deviprasad Shetty, S.K. Acharya, Advs. and M/s. Kumar & Kumar Advocates JUDGMENT D.B. Bhosale, J. 1. The order of reference dated 20th March 2014, which has occasioned the constitution of this Full Bench, has been passed by a Division Bench, in Hassan Co-operative Milk Producers Societies Union Limited and others vs. State of Karnataka and Others, W.A. No. 734/2014 in Writ Petition No. 10005/2014. The Division Bench in this case, having disagreed with the view taken by another Division Ben .....

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rative society by the second respondent-State Cooperative Societies Election Commission-and for any reason if the Election Commission fails to conduct the elections within the stipulated time, whether an Administrator can be appointed automatically under Section 28-A(5) of the Act? and iii) Whether Section-28-A(4) is ultra vires?" 2. The appellant-Hassan Co-operative Milk Producers Societies Union Ltd., which is a 'Federal Society' as defined by Section 2(e-4) of the Karnataka Coope .....

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ur consideration since none of the appellants/petitioners in this group of appeals challenged the validity of Section 28-A(4) of the Act. 4. In S.M. Kelagiri, the Division Bench, was considering the question whether the term of committee, which was elected on 12-6-2009 for five co-operative years would stand extended in view of the amendment of Section 28-A of the Act, in particular, sub-section (4) thereof, by the amending Act No. 3 of 2013, whereby the words "five co-operative years" .....

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t;. It was further observed that "in certain situations, the Court having regard to the purport and object sought to be achieved by the legislature may construe the word 'substitution' as an amendment having a prospective effect. If the amendment expressly states that the substituted provision shall come into force from the date of the amendment coming into force, the said provision is prospective in nature. Then, there is no scope for interpretation whether the said amendment is pr .....

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t, the object sought to be achieved, the mischief sought to be prevented and they, by interpretative process, can declare whether the said amendment is prospective or retrospective". Having so observed, the Division Bench refused to grant interim order as prayed for in the writ petition holding that their (Committee/Board) term came to an end on 31st March 2014. 5. The Division Bench in Hassan Milk Union independently considered the provisions contained in Section 28-A(4) of the Act and so .....

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on, deletion, insertion etc. It has, however, chosen that the present amendment should be a substitution and not otherwise. It has deliberately not assigned date of substitution since a substitution, always relates back to the date of enactment unless otherwise specified. This is the will of the legislature and this is what they intended the law to be. The substitution is clear and unambiguous. Therefore the substitution will extend the term of office upto a period of five years from the date of .....

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duct election, the appellant cannot be blamed for the default committed by them for not conducting the election within the stipulated time. The intention of the legislature is to see that the Co-operative sector shall be run and maintained by the elected representatives elected from amongst shareholders. On account of the default committed by the Government, the Administrator cannot be appointed to the first appellant-Federal Society". Having so observed, the Division Bench, as aforemention .....

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s were disposed of by the common order. The learned Judge dismissed all the writ petitions in terms of the judgment of the Division Bench in S. M Kelageri case. 6.1. In order to understand and to deal with the referred questions we would like to state in brief the background facts in Writ Appeal No. 734/2014 arising from the order of the learned single Judge dated 6th March 2014 in Writ Petition No. 10005/2014. Hassan Milk Union and 13 members of its Managing Committee, in this writ petition, im .....

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esort to removal of difficulty clause as suggested by the Election Commission. 6.2. The Managing Committee of Hassan Milk Union was elected on 1-7-2009 for a period of five co-operative years as contemplated by Section 28-A(4) of the Act, i.e. till the end of 31-3-2014. Even before expiry of their term on 31-3-2014, an amendment vide the amending Act No. 3/2013 was introduced whereby, the words 'five cooperative' years, as occurred in sub-section (4) of Section 28-A of the Act, were subs .....

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elageri. Thus, in effect, all the writ petitions, from which the present writ appeals arise, have been disposed of in terms of the judgment of the Division Bench in S. M Kelageri case. 7. We have heard learned counsel for the parties in extenso and with their assistance gone through the orders passed in 'Hassan Milk Union' and in 'S.M. Kelageri' and so also, the judgments relied upon by them in support of their submissions. 7.1. Mr. Jayakumar S. Patil, learned Senior Counsel appe .....

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to exist. He submitted that substitution combines repeal and fresh enactment. The substitution therefore has the effect of just deleting the old provision and making the new provision operative right from inception. He then submitted that the process of substitution consists of two steps as observed by the Supreme Court: first, the old provision is made to cease to exist and, next, the new provision is brought into existence in its place. In view thereof, the election of next Managing Committee .....

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bmitted, clearly provide that the existing managing Committee shall be deemed to have vacated their office on the last day of the time limits specified in Section 39-A. In short, he submitted that under any circumstance, an Administrator cannot be appointed, if the new committee is not constituted under Section 29-A, on the date of expiry of the term of office of the committee or if the elections are not held within the time limits specified in Section 39-A. Next, he submitted that it is the car .....

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iance upon the judgments of the Supreme Court in Zile Singh v. State of Haryana and others, AIR 2004 SC 5100; Government of India and others v. Indian Tobacco Association, (2005) 7 SCC 396; and Shamrao Parulekar and others v. District Magistrate, Thana Bombay and others, AIR 1952 SC 324. 7.2. Mr. A.S. Ponanna, Prl. Govt. Advocate appearing on behalf of respondents-1 and 3 to 6, on the other hand, submitted that when substitution takes place, unless the amending Act specifically indicates that it .....

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ssions advanced on behalf of the appellants deserves to be rejected outright. In support of his contention, he invited our attention to the judgment of the Supreme Court in Sham Sunder and others vs. Ram Kumar and another, (2001) 8 SCC 24. Based on this judgment he submitted that the amending Act No. 3 of 2013 is presumed to be prospective in operation since there is nothing in the Act to indicate that it was made retrospective, either expressly or by necessary intendment or implication and that .....

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entions. 8.1. The Supreme Court in Zile Singh (supra) was dealing with Haryana Municipal (Amendment) Act, 1994 (Act No. 3 of 1994) whereby, Section 13A in Chapter III of the Principal Act was inserted. Section 13A provided disqualification for being chosen as and for being a member of Municipality if he has more than two living children provided that a person having more than two children on or after expiry of one year of the commencement of the amendment Act, shall not be deemed to be disqualif .....

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vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' - a new law ought to regulate what is to follow not the past. (See: Principles of Statutory Interpretation by Justice G.P. Singh, Ninth Edition, 2004 at p. 438). It is not necessary that an express pr .....

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on. This can be achieved by express enactment or by necessary implication from the language employed. If it is a necessary implication from the language employed that the legislature intended a particular section to have a retrospective operation, the Courts will give it such an operation. In the absence of a retrospective operation having been expressly given, the Courts may be called upon to construe the provisions and answer the question whether the legislature had sufficiently expressed that .....

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for the consideration of the Supreme Court was as to what would be the effect of subsequent notification, 'substituting' the list of places specified in the original notification. The Supreme Court in this judgment in paragraphs-15 and 16 considered the word substitute and observed thus : "15. The word "substitute" ordinarily would mean "to put (one) in place of another", or "to replace". In Black's Law Dictionary, 5th Edn., at p. 1281, the word &q .....

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ured colleague". 16. By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby." (emphasis supplied) 8.3. It would be relevant to notice the following observations made by the Supreme court in Zile Singh (supra), while dealing with the amendment by way of substitution in paragraph 25 of the judgment: "....Substitution of a provision results in repeal of the .....

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new rule operative....." 8.4. In Sham Rao V Parulekar, (supra) the Preventive Detention Act 1950 was due to expire on the first of April 1951, but in that order, an amending Act was passed which, among other things prolonged its life to the first of April 1952. The order of detention in the case before the Supreme Court was passed under the Act of 1950 as amended by Act of 1951. According to the above decision of the Supreme Court the detention would have expired on the first of April 1952 .....

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the Supreme Court, while dealing with the question, in paragraph-7 are relevant for our purpose: "The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereaf .....

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cree passed by the trial Court in a pre-emption suit. The Supreme court in this case considered the effect of substituted Section 15 introduced by Amendment Act 1995 on the substantive rights of the parties and after considering the judgments in Hitendra Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602; Garikapati Veeraya v. N. Subbaiah Choudhary, AIR 1957 SC 540; Dayawati v. Inderjit, AIR 1966 SC 1423 and K.S. Paripoornam v. State of Kerala, (1994) 5 SCC 593, in paragraph 28 observed thu .....

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etermined under the law in force on the date of the suit. However, the position in law would be different in the matters which relate to procedural law but so far as substantive rights of parties are concerned they remain unaffected by the amendment in the enactment. We are, therefore, of the view that where a repeal of provisions of an enactment is followed by fresh legislation by an amending Act, such legislation is prospective in operation and does not affect substantive or vested rights of t .....

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he members of the committee shall be five Co-operative years and they shall be deemed to have vacated office as such members of the committee on the date of completion of the said term." (emphasis supplied) The proviso and explanation to this sub-section are not relevant for our purpose. 9.2. Sub-section (5) of Section 28A as it stood before its amendment by amending Act No. 3 of 2013 read thus: "(5) If the new committee is not constituted under Section 29A on the date of expiry of the .....

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and take all such actions as may be required, in the interest of the co-operative society. Provided that the Registrar shall appoint an administrator to a Co-operative Society or each of the Co-operative Societies formed after amalgamation or reorganization or division in accordance with Section 14 for a period of three months and the administrator so appointed shall arrange for holding elections to a Committee of such Co-operative Society or Societies as the case may be." 9.3. From bare p .....

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y the Registrar was deemed to have assumed charge as Administrator. In short, sub-section (4) and sub-section (5) provided that under any circumstances, the outgoing committee would not continue on expiry of "five cooperative years". 9.4. Section 28-A was amended by Act No. 6/2010 with effect from 30-03-2010. By this amendment, the words "term of office of the committee" in sub-section (5) of Section 28-A were substituted by the words "term of office of the committee or .....

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rs from the date of election". Insofar as subsection (5) is concerned, it remained the same. 9.6. By the amending Act No. 3 of 2013, the legislature made the term of elected board five years from the date of election. In sub-section (5) of Section 28-A, by the amending Act No. 6 of 2010, one more contingency/situation was inserted, whereby, the Registrar was conferred with the power to appoint an administrator if the elections are not held within the time limits specified in Section 39-A, i .....

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commence on the date on which the majority of the elected members of the committee assume office or the term of the out going committee expires, whichever is later. (2) Notwithstanding anything contained in this Act or the rules or the bye-laws of a cooperative society, the committee shall be deemed to be duly constituted when, the majority of the elected members of the committee are available to function as members of the committee after the election. (3) The committee deemed to be constituted .....

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nificant. 10.2. Section 29-A was then amended by the amending Act No. 3 of 2013, by which, only the word 'committee' occurring at all places in this provision was substituted by the word 'board'. 10.3. Thus, the amendments made from time to time, insofar as Section 29-A is concerned, for our purpose, are insignificant. Under this provision, the term of office of the members of the Board commences on the date on which the majority of the elected members of the board assume office .....

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vided after this amendment. By the amending Act No. 6 of 2010, sub-section (2) as it stood prior to 03-11-2009 was substituted by sub-section (2), whereunder, time limits were specified for conducting general election of the members of the committee in respect of primary societies, secondary societies, federal societies and apex societies. The amended sub-section (2) only is relevant for our purpose. 11.1. Again, by the amending Act No. 3 of 2013, Section 39-A was amended with effect from 11.2.2 .....

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ns during the last six months prior to the expiry of the term of office of the board and till the elections are conducted the incumbent board shall continue in their respective office. 12. Section 28-B, in particular, sub-section (2) thereof is also relevant to know the intendment of the legislature. Sub-section (2) prior to its amendment by the Amending Act No. 3 of 2013 and after the amendment remained the same except the substitution of the word 'committee' by the word 'board' .....

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subject to provisions of Section 29A and 39-A, and on expiry of the term, the members of the committee shall be deemed to have vacated office as such members on the date of completion of the said term. Under Section 39-A, the Election Commissioner is obliged to start the preparatory work for the conduct of the elections during the last six months prior to the expiry of the term of office of the board of the co-operative society and till the elections are conducted the incumbent board shall conti .....

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ection 28-B shall follow. 14. It is not in dispute and there cannot be any cavil that the election of members of the board shall now (after the amending Act No. 3 of 2013 was brought into force on 11.2.2013) be conducted as per the amending Act No. 3 of 2013. Sub-section(5) of Section 28A provides that if a new committee is not constituted under Section 29-A, on the date of expiry of the term of the office of the board, or if the elections are not held within the time limits specified under Sect .....

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not yet expired, they shall continue till the elections are held within the time limits specified in Section 39-A of the Act or till the newly elected board assume office or the term of outgoing board expires, whichever is later. We make it clear, that we are not considering a situation, where the term of the elected Board, as provided for under sub-section (4) of Section 28-A, once gets over whether such board would also continue till the elections are held within the time limits specified und .....

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39-A of the Act to hold elections get over. 15. In this backdrop, before we proceed to consider whether substituted provisions, vide Act No. 3 of 2013, would operate retrospectively, we would also like to have close look at the provisions inserted in the Constitution of India, by the Constitution (Ninety-seventh Amendment) Act, 2011 (for short "the Act of 2011"), which deal with co-operative societies. We, however, make it clear that we are making reference to the Act of 2011, for a l .....

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d to; Clause (2) of Article 243ZJ states that the term of office of elected members of the board and office-bearers shall be five years from the date of election and the term of office-bearers shall be co-terminus with the term of the board. Article 243ZK deals with election of members of board, which reads thus: "243ZK. Election of members of board.- (1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the e .....

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cedure and guidelines for the conduct of such election." 15.2. Article 243ZT speaks of continuance of existing laws in the following terms:- "243ZT. Continuance of existing laws.- Notwithstanding anything in this Part, any provision of any law relating to cooperative societies in force in a State immediately before the commencement of the Constitution (Ninety-seventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amende .....

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f the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the office of members of the outgoing board. The prescription of the term of office of the elected members of the board of a Co-operative Society may vary from State to State. Therefore, Article 243ZT has provided a non obstante clause stating that any prescription contrary to clause (2) of Article 243ZJ shall continue to be in force till the period it is amended or repe .....

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fice was prescribed as five cooperative years. The term 'Co-operative year' was defined in Section 2(t) of the Act to mean the year commencing from the first day of April. In view of the constitutional mandate contained in Article 243ZT, an amendment was made to the Act by virtue of the amending Act No. 3 of 2013 with 11th February 2013 as the date for enforcement of the provisions of the Act which was within one year from the date of commencement of the constitutional amendment, which w .....

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ct of the Act is to provide good and efficient management of cooperative societies through the elected members of the board. Election as members of the board, is not a substantive right of the members and it is only a right of being a member of the Managing Committee for the term specified under the Act. 17. As to the effect of the amending Act No. 3/2013, the language will have to be examined to find out the intendment of the legislature. Every statute is prima facie prospective unless it is ex .....

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g retrospective operation. This can be achieved by express enactment or by necessary implication from the language employed. As observed by the Supreme Court, in the absence of a retrospective operation having been expressly given, it is necessary to construe the provisions and answer the question whether the legislature had sufficiently expressed that intention giving the statute retrospectivity. 18. The retrospectivity is liable to be decided on a few touchstones such as the words used must ex .....

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ave retrospective effect and if one can unhesitatingly conclude in favour of retrospectivity there is no reason why the Court should hesitate in giving the Act or the relevant provision that operation unless prevented from doing so by any mandate contained in law or an established principle of interpretation of statute. We do not find any such mandate in the amending Act No. 3 of 2013. 19. The amendments, by amending Act No. 3 of 2013, were introduced by the State legislature, as observed earlie .....

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20. Thus, having regard to the language employed in the Amending Act No. 3 of 2013 and the Act of 2011 (97th Amendment to the Constitution) we are satisfied that by necessary implication/intendment the amended provision would operate retrospectively and as a result thereof, term of all the boards shall stand extended till expiry of the period of five years from the date of their election. 21. We would also like to examine the effect of amendment by way of substitution and to find out whether ame .....

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ourt can hold that the substitution has the effect of just deleting the old provision and making the new provision operative. The Supreme Court in State of Rajasthan vs. Mangilal Pindwal, AIR 1969 SC 2181 upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held the substitution would have the effect of a amending operation of law during the period in which it was in force. Similarly, in Koteswar Vittal Kamath v .....

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replacing the old provision by the substituted provision and in the absence of repugnancy, inconsistency and absurdity, must be construed as if it has been incorporated in the Act right from ab-initio. In other words, an amendment by way of substitution has retrospective operation. 22. The State Government, in the present case, by substituting new provisions of the Act in the place of old one, in our opinion, did not intend to keep alive the old provisions, otherwise, it would have made its inte .....

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t into existence in its place. Having regard to this principle, we find that all the substituted provisions introduced by way of Amending Act No. 3 of 2013, have retrospective operation. Thus, the rule against retrospectivity is not applicable when an amendment is made to a provision by way of substitution. Considering that the elected members of the Managing Committee do not have any substantive/vested right and their term is governed by the provisions, in particular, the amended Sub-section (4 .....

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uch. Their term is governed by the provisions of the Act. 24. We, accordingly in answer to the first question referred to the Full Bench hold that Section 28-A(4) of the Act is retrospective in nature and that an administrator cannot be appointed under Section 28-A(5) of the Act, till expiry of the period of five years from the date of their election as contemplated by sub-section (4) of Section 28-A of the Act. 25. Insofar as the second question is concerned, in our opinion, in the facts and ci .....

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aratory work to conduct elections, as contemplated by Section 39-A of the Act, and that the elections are slotted to be conducted in the last week of May, 2014 and the newly elected boards shall assume charge on expiry of the period of five years from the date of elections of the existing boards. This Bench has so recorded in order dated 21.4.2014. 26. The Board of Hassan Milk Union was elected on 1st July 2009 and their term as per the amended provisions contained in Sub-section (4) of Section .....

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nto a question whether the Registrar or any other officer within whose jurisdiction the society is situated, and who is authorised by the Registrar can take charge as administrator on expiry of term of office of the members of the board, as provided for under sub-section (4) of Section 28-A viz., of five years from the date of election. Since none of the appellants/petitioners raised such issue or made any prayer to that effect, we are of the opinion that the second question as formulated need n .....

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