REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).3888 OF 2015
VINESHKUMAR MAVJIBHAI PARMAR …Appellant(s)
VERSUS
DETHALI GOPALAK VIVIDH KARYAKARI SAHAKARI
MANDALI LTD. AND ORS. ...Respondent(s)
WITH
CIVIL APPEAL NO(s). 3889 OF 2015
CIVIL APPEAL NO(s). 3890 OF 2015
CIVIL APPEAL NO(s). 3891 OF 2015
CIVIL APPEAL NO(s). 3892 OF 2015
CIVIL APPEAL NO(s). 3893 OF 2015
CIVIL APPEAL NO(s). 3894 OF 2015
CIVIL APPEAL NO(s). 3896 OF 2015
J U D G M E N T
Chelameswar, J.
1. All these eight appeals are preferred by the unsuccessful respondents
in various special civil applications (writ petitions under Article 226 of
the Constitution) before the High Court of Gujarat at Ahmedabad disposed of
by a common judgment dated 17.3.2015.
2. Whether the members of the Managing Committees of co-operative
societies (against whom proceedings under Section 107 of the Gujarat Co-
operative Societies Act, 1961 are pending) have a right to participate in
the election process of an Agricultural Produce Marketing Committee
constituted under the Gujarat Agricultural Produce Markets Act, 1963. The
two enactments mentioned above are referred to hereinafter as “the
SOCIETIES ACT” and “the MARKETS ACT”.
3. The facts leading to the present litigation:
Sec. 9 of the MARKETS ACT contemplates the establishment of a “Market
Committee” for every “market area”. Both expressions are defined under
Section 2(xiii) and 2 (xiv)[1].
Section 10 of the MARKETS ACT declares market committees to be bodies
corporate with perpetual succession and a common seal. Section 11
stipulates that every market committee shall consist of 17 members falling
into 5 categories. Section 11(1)(i) stipulates that eight agriculturist
members shall be elected by an electoral college consisting of the members
of the managing committees of the “co-operative societies dispensing
agricultural credit” (hereafter CREDIT SOCIETIES) in the market area.
Section 11(1)(i) of the MARKETS ACT reads as follows:
“eight agriculturists who shall be elected by members of managing
committees of co-operative societies (other than co-operative marketing
societies and milk produce co-operative societies) dispensing agricultural
credit in the market area;”
4. The activity of co-operative societies in the State of Gujarat is
regulated by the SOCIETIES ACT. Section 107 of the SOCIETIES ACT provides
for the liquidation and winding up of the societies functioning under the
Act. Section 107(1) authorises the Registrar to pass an interim order
directing a cooperative society to be wound up for any one of the reasons
specified in clauses (a), (b) and (c) of Section 107(1). Sub-Section(3),
thereof authorises the Registrar to pass a final order after granting a
hearing to the society against which an interim order under sub-Section(1)
is made. Such a final order could be one either finally winding up the
society by confirming the interim order or vacating the interim order
passed earlier, whichever is appropriate in law having regard to the facts
and circumstances of the case.
5. In exercise of the power under Section 107 of the SOCIETIES ACT
proceedings were initiated by the Registrar[2] against eleven Co-operative
societies (established for the purpose of dispensing agricultural credit)
operating in the market area of a market committee known as SIRPUR market
committee, the details of which are not necessary for the present purpose.
6. We are concerned with only eight of the eleven co-operative societies
mentioned above. Admittedly, with reference to each of the said eight co-
operative societies, interim orders were passed initially under Section
107(1)[3] of the SOCIETIES ACT directing them to be wound up. Subsequently,
final orders directing the winding up of each one of the said cooperative
societies were also passed. The said orders were challenged before the
Appellate authority. The matters eventually reached the High Court,
complete details of the litigation may not be necessary except to say that
the High Court had set aside the final orders with a further direction to
the Registrar to conduct an inquiry afresh under Section 107 of the
SOCIETIES ACT and pass appropriate final orders. Admittedly the said
enquiry is pending.
7. Elections to the SIRPUR market committee fell due in the year 2015.
A voters list (under Rule 7 of the Gujarat Agricultural Produce Market
Rules, 1965) came to be prepared consisting the names of the members of the
managing committee of the above-mentioned 8 cooperative societies
(alongwith other societies) operating within the market area of the SIRPUR
market committee.
8. In view of the pendency of the liquidation proceedings, objections
for the inclusion of the names of the members of the managing committees of
the 8 cooperative societies were raised. Objections were upheld by the
proceedings dated 26.2.2015 of the Additional Registrar and Co-operation
Officer (Market), Patan, directing the deletion of the names of the members
of the managing committee of the above-mentioned 8 cooperative
societies[4]. Operative portion of the order dated 26.2.2015 w.r.t. one of
the 8 societies reads;
“I, Mr. H.G. Rawal, Authorized Officer & Co-operation Officer [Market],
Patan & in exercise of the powers conferred in me and as per the provisions
of the Gujarat Agriculture Produce Market Committee Act, 1963 and Market
Committee Rules, 1965 allow the application by the objector Mr. Parmar
Vineshkumar Mavjibai and Prajapati Manishbai Khemabhai for deleting the
names of the Managing Committee members of the Shri Kalyana Group Gopalak
Vividh Karyakari Sahkari Mandali Ltd. at Kalyana, Taluka Siddhpur from the
Agriculturist constituency voters list and accept the just and proper
objections raised, and in the voters list Sr. 259 to 279 voters names are
ordered to be deleted. The said orders will be subject to the orders
passed by the Hon. High Court and Additional Registrar[Appeal], Co-
operative society, Gujarat State, Gandhinagar.
-sd-
[S.G. Rawal]
Additional Registrar &
Co-operation Officer [Market]
Patan”
9. Aggrieved by such a decision, the members of the managing committee
of the said society filed special civil applications invoking Article 226
of the Constitution of India. By the judgment impugned in these appeals,
the special civil application was allowed setting aside the orders of the
Additional Registrar dated 26.2.2015.
10. We are informed that the facts relating to the other 7 societies are
substantially similar.
11. It is argued by the appellant;
Since the 8 societies in question are in the process of being wound up,
they ceased to be CREDIT SOCIETIES within the meaning of Section 11(1)(i)
of the MARKETS ACT because their activities are limited under Section 110
of the SOCIETIES ACT i.e., the business of the societies can be carried
only so far as may be necessary for the beneficial winding up of the
society. It is, therefore, submitted that the members of the managing
committees of these 8 societies would be disentitled to be voters at an
election for the agricultural market committee.
According to the appellants, permitting the members of the managing
committees of CREDIT SOCIETIES which are in the process of being wound up,
to participate in the election process and elect agriculturist members to
the market committees, would be inconsistent with the spirit of the MARKETS
ACT, in view of the declaration contained in Section 108(2)[5] of the
SOCIETIES ACT.
It is, therefore, submitted that the High Court erred in interfering with
the orders of the Registrar directing the deletion of the names of the
members of the managing committees of the 8 societies from the voters list.
12. None appears for anyone of the respondents.
13. The purpose of the establishment of the market committees was
examined and explained by this Court in M.C.V.S. Arunachala Nadar v. The
State of Madras & Others, AIR 1959 SC 300. A constitution bench of this
court made an elaborate inquiry into the legislative history of the subject
and held that:
“The object of such legislation is to protect the producers of commercial
crops from being exploited by the middlemen and profiteers and to enable
them to secure a fair return for their produce”
(See Para 6)
14. For achieving the said purpose, market committees are constituted
under the laws made by the legislatures of various States giving
representation considered appropriate by the concerned legislature to
various classes of persons who have an interest in achieving the purpose of
the market committees.
15. The legislature of the State of Gujarat thought it fit to give
representation under the MARKETS ACT to 5 classes of persons: (i)
agriculturists, (ii) traders holding general licences[6] (iii)
representatives of the cooperative marketing societies[7] (iv) a nominated
member by the concerned local authority[8] within whose jurisdiction the
“principal market yard” is situated and (v) two nominated members of the
State Government.
16. Of the above-mentioned 5 classes of members, the first three classes
consist of elected members and the later two are of nominated. Three
distinct electoral colleges are created under sub-clause (i), (ii) and
(iii) of Section 11(1) for electing the 3 classes of elected members.
“Section 11. Constitution of market committee –
(1) Every market committee shall consist of the following members namely:-
(i) eight agriculturists who shall be elected by members of managing
committees of co-operative societies other than co-operative marketing
societies and milk produce co-operative societies dispensing agricultural
credit in the market area;
(ii) four members to be elected in the prescribed manner from amongst
themselves by the traders holding general licenses;
(iii) two representatives of the Co-operative marketing societies situate
in the market area and holding general licenses, to be elected from amongst
the members (other than nominal, associate or sympathizer members) of such
societies by the members of the managing committees of such societies:
Provided that where the number of co-operative marketing societies so
situate does not exceed two, only one representative shall be so elected.”
17. While the elected representatives to the market committee belonging
to classes (ii) and (iii) mentioned above are required to be members of the
concerned electoral college, the Act does not insist upon such requirement
w.r.t. those who are to be elected under the class (i) mentioned above. In
other words, the members of the market committee belonging to the 1st of
the abovementioned 5 classes need not be members of the electoral college
which elects them.
18. The right to elect ‘agriculturists’ to a market committee is
conferred under Section 11 of the MARKETS ACT upon the electoral college
consisting of members of the managing committees of cooperative societies
operating in the market area which are dispensing agricultural credit
(hereafter CREDIT SOCIETIES).
19. The reason for the above, as we understand, is that those who seek
election under the category of agriculturists belong to a very nebulous
class, whereas the persons falling under classes (ii) and (iii) mentioned
above can be identified with certainty based upon public records.
Therefore, the legislature, in its wisdom, though it fit to create an
electoral college which, by virtue of its very activity, would be in a
better position to identify agriculturists eligible to contest for the
membership of a market committee. By the very nature of the office held by
them, members of the managing committees of “cooperative societies
dispensing agricultural credit” would have an opportunity to interact with
the agriculturists.
20. The pendency of the liquidation proceedings in law[9], compels the
elected members of the managing committee (OFFICERS of the Society) of a co-
operative society to hand over the custody and control of all the property
and assets, etc. of the society to the liquidator appointed under Section
107(1) of the SOCIETIES ACT. According to the appellants, the necessary
implication flowing therefrom is that the members of the managing committee
of a society facing liquidation proceeding are debarred from anyway dealing
with the affairs of their society. Therefore, they should also not be
permitted to exercise the right to participate in the election of a market
committee.
21. The powers of the liquidator are specified under Section 110, the
details of which may not be necessary except to state that the liquidator
virtually becomes the caretaker manager of the society whose winding up is
impending. At the same time it is equally important to note that Sec.
108(3)(b)[10] stipulates that the officers[11] of the cooperative society
vacate their offices only on the passage of the final order of winding up.
Obviously, they continue to be the office bearers but are disabled from
enjoying certain rights attached to the office and performing certain
functions to be performed by the holders of the office
22. The rights and functions of the OFFICERS of a co-operative society
are many. Some of them are created by the statute under which the office is
created. Others could be the creation of subordinate legislation (in the
context of the present case, even the byelaws of the society). The
existence or lack of such rights and functions depend upon the scheme and
tenor of the SOCIETIES ACT and the subordinate legislation made thereunder.
Such rights and functions are put an end to only by the operation of law
i.e., the SOCIETIES ACT.
23. Apart from that, nothing prevents the legislature from conferring by
another law additional rights or functions on a person holding an office
created under the SOCIETIES ACT.
24. The legislature of Gujarat by Section 11(1) of the MARKETS ACT
conferred on the OFFICERS of a class of CREDIT SOCIETIES an additional
function of electing members of the market committees. Such function is
neither conferred on the OFFICERS of all the societies functioning under
the SOCIETIES ACT nor such function includes the right to elect every
member of the concerned market committee. Such a function obviously
creates a right in the officers of the societies. Such a statutory right
could not be taken away in the absence of any express authority of law.
25. The Gujarat legislature expressly provided under the SOCIETIES ACT
for the curtailment of certain rights of the officers of societies facing
liquidation proceedings. It must be remembered that at the same time it
also declared that such OFFICERS cease to be the officers of the Society
only when a final order of winding up is passed. In a given case if the
Registrar after an appropriate enquiry following the interim order of
winding decides not to finally wind up the society, the OFFICERS of the
society would once again be entitled to exercise all the rights associated
with it and perform all the functions attached to the office. Therefore,
merely because the officers of CREDIT SOCIETY facing liquidation are
disabled from enforcing certain rights attached to the office or perform
certain obligations appended to the office, it does not necessarily follow
that they are disabled from performing every function entrusted by law to
such office.
26. We now deal with the submission that the society ceased to be a
CREDIT SOCIETY in view of the pendency of the winding up proceedings.
27. We are of the opinion that the phrase “co-operative societies
dispensing agricultural credit in the market area” in Section 11(1)(i) of
the MARKETS ACT is only descriptive of the purpose for which the societies
are established. Section 11(1)(i) cannot be construed as imposing an
incessant obligation of “dispensing agricultural credit” in order to enable
the members of the managing committee of CREDIT SOCIETIES to participate in
the election to the market committee. The obligation, if any, to “dispense
agricultural credit” arises under the bye-laws of the society subject of
course to the availability of funds and various other factors. We are of
the opinion that the above quoted words are only descriptive of the class
of society the members of whose managing committees are entitled to
participate in the election of the market committee. It is obvious from the
language of the sub-section that there can exist more than one class of co-
operative societies functioning under the Act. The very fact that the
legislature took care to expressly exclude members of the managing
committees of two classes of societies i.e. “Co-operative Marketing
Societies” and “Milk Produce Co-operative Societies”, definitely indicates
that there can exist more than one class of societies – apart from the
common knowledge.
28. Section 4[12] of the SOCIETIES ACT contemplates that societies could
be registered for different purposes. They are – “the promotion of the
economic interests of its members or general welfare of its members or
economic interest of the general welfare of the public”.
29. Since Section 11(1)(i) of the MARKETS ACT is establishing an
electoral college for the election of a certain class (agriculturists) of
members of the market committees, the legislature thought it fit that only
the members of the managing committees of those co-operative societies
which have a nexus to agricultural activity should be members of the
electoral college.
30. The submission of the appellant that Section 11(1)(i) imposes a legal
obligation that the members of the managing committees of only those co-
operative societies which are currently dispensing agricultural credit in
the market area are entitled to participate in the electoral process of the
concerned market committee (in other words, the phrase “co-operative
societies dispensing agricultural credit” is indicative of the current
activity of the societies but not the purpose for which the society is
established), would lead to various difficult questions:
(i) What is the period to which the currency of such activity would
relate to? Whether the activity should be current when the voters’ list is
prepared or the activity should continue even on the date of voting?
(ii) Whether credit societies which do not dispense agricultural credit
for a certain period of time because of either paucity of funds or
borrowers are debarred from “dispensing agricultural credit” because of
some legal prohibition or any other reason operating temporarily cease to
be societies whose objective is to provide agricultural credit?
31. Credit Societies against which there is an ‘interim order’ of winding
up are temporarily debarred from dispensing agricultural credit, by virtue
of the operation of law. The embargo imposed by such interim order may or
may not fructify into a final order of winding up. (We have already
discussed this aspect of the matter at para 21 supra). On the face of such
possibility of the society resuming its activity of “dispensing
agricultural credit” - to debar its managing committee members from
discharging their statutory obligation under the MARKETS ACT would be
productive of public mischief. Such an interpretation of the statute must
be avoided.
32. For the above reasons, we do not see any merit in the appeals.
Therefore, the appeals are dismissed.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Prafulla C. Pant)
New Delhi;
November 16, 2016
-----------------------
[1]
Section 2 (xiii) “market area” means any area declared or
deemed to be declared to be a market area under this Act;
Section 2(xiv) “market committee” means a market committee
established or deemed to be established under this Act;
[2] Section 2(17) of the Gujarat Co-operative Societies Act, 1961 -
“Registrar” means a person appointed to be the Registrar of Co-operative
Societies under this Act; and includes to the extent of the powers of the
Registrar conferred on any other person under this Act, such person and
includes an Additional or Joint Registrar;
[3] Section 107 Winding up – (1) [Except as otherwise provided in sub-
section (1A) if the Registrar, –-
(a) after an inquiry has been held under section 86, or an inspection
has been made under any of the provisions of sub-section (8) of section 84,
section 87 or section 88 or on the report of the auditor auditing the
accounts of the society, or]
(b) on receipt of an application made upon a resolution carried by
three-fourths of the members of a society present at a special general
meeting called for the purpose, or
(c) of his own motion, in the case of a society which –
(I) has not commenced working, or
(ii) has ceased working, or
(iii) possesses shares of members deposits not exceeding
five hundred rupees, or
(iv) has ceased to comply with any conditions as to
registration and management in this act or [the rules or the bye-laws, or]
(v) has failed to comply with any directions issued under sub-
section (1) of Section 160 or such directions as modified under sub-section
(2) of that section.]
is of the opinion that a society ought to be wound up, he may
make an interim order directing it to be wound up.
[4] We take the facts of the first respondent society in Civil
Appeal No. 3891/2015 as representative facts of the 8 appeals.
[5] See F/N 9 infra
[6] Section 2(ix) – “licence” means a licence granted under section 6
or, as the case may be, a general or special licence granted under section
27;
[7] Section 2(v) – “co-operative marketing society” means a society
registered or deemed to be registered as such under the Gujarat Co-
operative Societies Act, 1961 (Guj. X of 1962), and engaged in the business
of buying or selling of agricultural produce or of possessing of
agricultural produce and holding a licence;
[8] Section 2(xi) – “local authority” means –
a corporation constituted under the Bombay Provincial Municipal
Corporation Act, 1949 (Bom. LIX of 1949); or
a municipality constituted or deemed to be constituted under –
the Bombay District Municipal Act, 1901 (Bom. III of 1901), or that
Act as adapted and applied to the Saurashtra area; or
the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925), or that
Act as adapted and applied to the Saurashtra area or that Act as applied to
the Kutch area; or
(c) a village panchayat constituted or deemed to be constituted
under the Bombay Village Panchayats Act, 1959 (Bom. III of 1959), or a gram
panchayat or nagar panchayat constituted under the Gujarat Panchayat Act,
1961 (Guj. VI of 1962);
[9] Section 108. Appointment of Liquidator - (1) When an interim
or final order is made under Section 107 for the winding up of a society,
the Registrar may, in accordance with the rules appoint a person to be the
liquidator of the society, and fix his remuneration.
(2) Where an interim order is made the officers of the society shall
hand over to the liquidator the custody and control of all the property,
effects and actionable claims to which the society is or appears to be
entitled, and of all books, records and other documents pertaining to the
business of the society and, shall have no access to any of them.
[10] 108 (3) When a final order is made confirming the Interim, order,
the officers of the society
xxx xxx xxx xxx
(b) shall vacate their offices and while winding up order remains in
force the general body of the society shall not exercise any powers.
[11] Section 2(14) of the SOCIETIES ACT. – “officers” means a person
elected or appointed by a society to any office of such society according
to its bye-laws; and includes a chairman, vice-chairman, president, vice-
president, managing director, manager, secretary, treasurer, member of the
committee, and any other person elected or appointed under this Act, the
rules or the bye-laws, to give directions in regard to the business of such
society.
[12] Section 4. Societies which may be registered.— A society, which
has as its object the promotion of the economic interests or general
welfare of its members or of the public, in accordance with co-operative
principles, or as society established with the object of facilitating the
operations of any such society, may be registered under this Act.
-----------------------
19
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).3888 OF 2015
VINESHKUMAR MAVJIBHAI PARMAR …Appellant(s)
VERSUS
DETHALI GOPALAK VIVIDH KARYAKARI SAHAKARI
MANDALI LTD. AND ORS. ...Respondent(s)
WITH
CIVIL APPEAL NO(s). 3889 OF 2015
CIVIL APPEAL NO(s). 3890 OF 2015
CIVIL APPEAL NO(s). 3891 OF 2015
CIVIL APPEAL NO(s). 3892 OF 2015
CIVIL APPEAL NO(s). 3893 OF 2015
CIVIL APPEAL NO(s). 3894 OF 2015
CIVIL APPEAL NO(s). 3896 OF 2015
J U D G M E N T
Chelameswar, J.
1. All these eight appeals are preferred by the unsuccessful respondents
in various special civil applications (writ petitions under Article 226 of
the Constitution) before the High Court of Gujarat at Ahmedabad disposed of
by a common judgment dated 17.3.2015.
2. Whether the members of the Managing Committees of co-operative
societies (against whom proceedings under Section 107 of the Gujarat Co-
operative Societies Act, 1961 are pending) have a right to participate in
the election process of an Agricultural Produce Marketing Committee
constituted under the Gujarat Agricultural Produce Markets Act, 1963. The
two enactments mentioned above are referred to hereinafter as “the
SOCIETIES ACT” and “the MARKETS ACT”.
3. The facts leading to the present litigation:
Sec. 9 of the MARKETS ACT contemplates the establishment of a “Market
Committee” for every “market area”. Both expressions are defined under
Section 2(xiii) and 2 (xiv)[1].
Section 10 of the MARKETS ACT declares market committees to be bodies
corporate with perpetual succession and a common seal. Section 11
stipulates that every market committee shall consist of 17 members falling
into 5 categories. Section 11(1)(i) stipulates that eight agriculturist
members shall be elected by an electoral college consisting of the members
of the managing committees of the “co-operative societies dispensing
agricultural credit” (hereafter CREDIT SOCIETIES) in the market area.
Section 11(1)(i) of the MARKETS ACT reads as follows:
“eight agriculturists who shall be elected by members of managing
committees of co-operative societies (other than co-operative marketing
societies and milk produce co-operative societies) dispensing agricultural
credit in the market area;”
4. The activity of co-operative societies in the State of Gujarat is
regulated by the SOCIETIES ACT. Section 107 of the SOCIETIES ACT provides
for the liquidation and winding up of the societies functioning under the
Act. Section 107(1) authorises the Registrar to pass an interim order
directing a cooperative society to be wound up for any one of the reasons
specified in clauses (a), (b) and (c) of Section 107(1). Sub-Section(3),
thereof authorises the Registrar to pass a final order after granting a
hearing to the society against which an interim order under sub-Section(1)
is made. Such a final order could be one either finally winding up the
society by confirming the interim order or vacating the interim order
passed earlier, whichever is appropriate in law having regard to the facts
and circumstances of the case.
5. In exercise of the power under Section 107 of the SOCIETIES ACT
proceedings were initiated by the Registrar[2] against eleven Co-operative
societies (established for the purpose of dispensing agricultural credit)
operating in the market area of a market committee known as SIRPUR market
committee, the details of which are not necessary for the present purpose.
6. We are concerned with only eight of the eleven co-operative societies
mentioned above. Admittedly, with reference to each of the said eight co-
operative societies, interim orders were passed initially under Section
107(1)[3] of the SOCIETIES ACT directing them to be wound up. Subsequently,
final orders directing the winding up of each one of the said cooperative
societies were also passed. The said orders were challenged before the
Appellate authority. The matters eventually reached the High Court,
complete details of the litigation may not be necessary except to say that
the High Court had set aside the final orders with a further direction to
the Registrar to conduct an inquiry afresh under Section 107 of the
SOCIETIES ACT and pass appropriate final orders. Admittedly the said
enquiry is pending.
7. Elections to the SIRPUR market committee fell due in the year 2015.
A voters list (under Rule 7 of the Gujarat Agricultural Produce Market
Rules, 1965) came to be prepared consisting the names of the members of the
managing committee of the above-mentioned 8 cooperative societies
(alongwith other societies) operating within the market area of the SIRPUR
market committee.
8. In view of the pendency of the liquidation proceedings, objections
for the inclusion of the names of the members of the managing committees of
the 8 cooperative societies were raised. Objections were upheld by the
proceedings dated 26.2.2015 of the Additional Registrar and Co-operation
Officer (Market), Patan, directing the deletion of the names of the members
of the managing committee of the above-mentioned 8 cooperative
societies[4]. Operative portion of the order dated 26.2.2015 w.r.t. one of
the 8 societies reads;
“I, Mr. H.G. Rawal, Authorized Officer & Co-operation Officer [Market],
Patan & in exercise of the powers conferred in me and as per the provisions
of the Gujarat Agriculture Produce Market Committee Act, 1963 and Market
Committee Rules, 1965 allow the application by the objector Mr. Parmar
Vineshkumar Mavjibai and Prajapati Manishbai Khemabhai for deleting the
names of the Managing Committee members of the Shri Kalyana Group Gopalak
Vividh Karyakari Sahkari Mandali Ltd. at Kalyana, Taluka Siddhpur from the
Agriculturist constituency voters list and accept the just and proper
objections raised, and in the voters list Sr. 259 to 279 voters names are
ordered to be deleted. The said orders will be subject to the orders
passed by the Hon. High Court and Additional Registrar[Appeal], Co-
operative society, Gujarat State, Gandhinagar.
-sd-
[S.G. Rawal]
Additional Registrar &
Co-operation Officer [Market]
Patan”
9. Aggrieved by such a decision, the members of the managing committee
of the said society filed special civil applications invoking Article 226
of the Constitution of India. By the judgment impugned in these appeals,
the special civil application was allowed setting aside the orders of the
Additional Registrar dated 26.2.2015.
10. We are informed that the facts relating to the other 7 societies are
substantially similar.
11. It is argued by the appellant;
Since the 8 societies in question are in the process of being wound up,
they ceased to be CREDIT SOCIETIES within the meaning of Section 11(1)(i)
of the MARKETS ACT because their activities are limited under Section 110
of the SOCIETIES ACT i.e., the business of the societies can be carried
only so far as may be necessary for the beneficial winding up of the
society. It is, therefore, submitted that the members of the managing
committees of these 8 societies would be disentitled to be voters at an
election for the agricultural market committee.
According to the appellants, permitting the members of the managing
committees of CREDIT SOCIETIES which are in the process of being wound up,
to participate in the election process and elect agriculturist members to
the market committees, would be inconsistent with the spirit of the MARKETS
ACT, in view of the declaration contained in Section 108(2)[5] of the
SOCIETIES ACT.
It is, therefore, submitted that the High Court erred in interfering with
the orders of the Registrar directing the deletion of the names of the
members of the managing committees of the 8 societies from the voters list.
12. None appears for anyone of the respondents.
13. The purpose of the establishment of the market committees was
examined and explained by this Court in M.C.V.S. Arunachala Nadar v. The
State of Madras & Others, AIR 1959 SC 300. A constitution bench of this
court made an elaborate inquiry into the legislative history of the subject
and held that:
“The object of such legislation is to protect the producers of commercial
crops from being exploited by the middlemen and profiteers and to enable
them to secure a fair return for their produce”
(See Para 6)
14. For achieving the said purpose, market committees are constituted
under the laws made by the legislatures of various States giving
representation considered appropriate by the concerned legislature to
various classes of persons who have an interest in achieving the purpose of
the market committees.
15. The legislature of the State of Gujarat thought it fit to give
representation under the MARKETS ACT to 5 classes of persons: (i)
agriculturists, (ii) traders holding general licences[6] (iii)
representatives of the cooperative marketing societies[7] (iv) a nominated
member by the concerned local authority[8] within whose jurisdiction the
“principal market yard” is situated and (v) two nominated members of the
State Government.
16. Of the above-mentioned 5 classes of members, the first three classes
consist of elected members and the later two are of nominated. Three
distinct electoral colleges are created under sub-clause (i), (ii) and
(iii) of Section 11(1) for electing the 3 classes of elected members.
“Section 11. Constitution of market committee –
(1) Every market committee shall consist of the following members namely:-
(i) eight agriculturists who shall be elected by members of managing
committees of co-operative societies other than co-operative marketing
societies and milk produce co-operative societies dispensing agricultural
credit in the market area;
(ii) four members to be elected in the prescribed manner from amongst
themselves by the traders holding general licenses;
(iii) two representatives of the Co-operative marketing societies situate
in the market area and holding general licenses, to be elected from amongst
the members (other than nominal, associate or sympathizer members) of such
societies by the members of the managing committees of such societies:
Provided that where the number of co-operative marketing societies so
situate does not exceed two, only one representative shall be so elected.”
17. While the elected representatives to the market committee belonging
to classes (ii) and (iii) mentioned above are required to be members of the
concerned electoral college, the Act does not insist upon such requirement
w.r.t. those who are to be elected under the class (i) mentioned above. In
other words, the members of the market committee belonging to the 1st of
the abovementioned 5 classes need not be members of the electoral college
which elects them.
18. The right to elect ‘agriculturists’ to a market committee is
conferred under Section 11 of the MARKETS ACT upon the electoral college
consisting of members of the managing committees of cooperative societies
operating in the market area which are dispensing agricultural credit
(hereafter CREDIT SOCIETIES).
19. The reason for the above, as we understand, is that those who seek
election under the category of agriculturists belong to a very nebulous
class, whereas the persons falling under classes (ii) and (iii) mentioned
above can be identified with certainty based upon public records.
Therefore, the legislature, in its wisdom, though it fit to create an
electoral college which, by virtue of its very activity, would be in a
better position to identify agriculturists eligible to contest for the
membership of a market committee. By the very nature of the office held by
them, members of the managing committees of “cooperative societies
dispensing agricultural credit” would have an opportunity to interact with
the agriculturists.
20. The pendency of the liquidation proceedings in law[9], compels the
elected members of the managing committee (OFFICERS of the Society) of a co-
operative society to hand over the custody and control of all the property
and assets, etc. of the society to the liquidator appointed under Section
107(1) of the SOCIETIES ACT. According to the appellants, the necessary
implication flowing therefrom is that the members of the managing committee
of a society facing liquidation proceeding are debarred from anyway dealing
with the affairs of their society. Therefore, they should also not be
permitted to exercise the right to participate in the election of a market
committee.
21. The powers of the liquidator are specified under Section 110, the
details of which may not be necessary except to state that the liquidator
virtually becomes the caretaker manager of the society whose winding up is
impending. At the same time it is equally important to note that Sec.
108(3)(b)[10] stipulates that the officers[11] of the cooperative society
vacate their offices only on the passage of the final order of winding up.
Obviously, they continue to be the office bearers but are disabled from
enjoying certain rights attached to the office and performing certain
functions to be performed by the holders of the office
22. The rights and functions of the OFFICERS of a co-operative society
are many. Some of them are created by the statute under which the office is
created. Others could be the creation of subordinate legislation (in the
context of the present case, even the byelaws of the society). The
existence or lack of such rights and functions depend upon the scheme and
tenor of the SOCIETIES ACT and the subordinate legislation made thereunder.
Such rights and functions are put an end to only by the operation of law
i.e., the SOCIETIES ACT.
23. Apart from that, nothing prevents the legislature from conferring by
another law additional rights or functions on a person holding an office
created under the SOCIETIES ACT.
24. The legislature of Gujarat by Section 11(1) of the MARKETS ACT
conferred on the OFFICERS of a class of CREDIT SOCIETIES an additional
function of electing members of the market committees. Such function is
neither conferred on the OFFICERS of all the societies functioning under
the SOCIETIES ACT nor such function includes the right to elect every
member of the concerned market committee. Such a function obviously
creates a right in the officers of the societies. Such a statutory right
could not be taken away in the absence of any express authority of law.
25. The Gujarat legislature expressly provided under the SOCIETIES ACT
for the curtailment of certain rights of the officers of societies facing
liquidation proceedings. It must be remembered that at the same time it
also declared that such OFFICERS cease to be the officers of the Society
only when a final order of winding up is passed. In a given case if the
Registrar after an appropriate enquiry following the interim order of
winding decides not to finally wind up the society, the OFFICERS of the
society would once again be entitled to exercise all the rights associated
with it and perform all the functions attached to the office. Therefore,
merely because the officers of CREDIT SOCIETY facing liquidation are
disabled from enforcing certain rights attached to the office or perform
certain obligations appended to the office, it does not necessarily follow
that they are disabled from performing every function entrusted by law to
such office.
26. We now deal with the submission that the society ceased to be a
CREDIT SOCIETY in view of the pendency of the winding up proceedings.
27. We are of the opinion that the phrase “co-operative societies
dispensing agricultural credit in the market area” in Section 11(1)(i) of
the MARKETS ACT is only descriptive of the purpose for which the societies
are established. Section 11(1)(i) cannot be construed as imposing an
incessant obligation of “dispensing agricultural credit” in order to enable
the members of the managing committee of CREDIT SOCIETIES to participate in
the election to the market committee. The obligation, if any, to “dispense
agricultural credit” arises under the bye-laws of the society subject of
course to the availability of funds and various other factors. We are of
the opinion that the above quoted words are only descriptive of the class
of society the members of whose managing committees are entitled to
participate in the election of the market committee. It is obvious from the
language of the sub-section that there can exist more than one class of co-
operative societies functioning under the Act. The very fact that the
legislature took care to expressly exclude members of the managing
committees of two classes of societies i.e. “Co-operative Marketing
Societies” and “Milk Produce Co-operative Societies”, definitely indicates
that there can exist more than one class of societies – apart from the
common knowledge.
28. Section 4[12] of the SOCIETIES ACT contemplates that societies could
be registered for different purposes. They are – “the promotion of the
economic interests of its members or general welfare of its members or
economic interest of the general welfare of the public”.
29. Since Section 11(1)(i) of the MARKETS ACT is establishing an
electoral college for the election of a certain class (agriculturists) of
members of the market committees, the legislature thought it fit that only
the members of the managing committees of those co-operative societies
which have a nexus to agricultural activity should be members of the
electoral college.
30. The submission of the appellant that Section 11(1)(i) imposes a legal
obligation that the members of the managing committees of only those co-
operative societies which are currently dispensing agricultural credit in
the market area are entitled to participate in the electoral process of the
concerned market committee (in other words, the phrase “co-operative
societies dispensing agricultural credit” is indicative of the current
activity of the societies but not the purpose for which the society is
established), would lead to various difficult questions:
(i) What is the period to which the currency of such activity would
relate to? Whether the activity should be current when the voters’ list is
prepared or the activity should continue even on the date of voting?
(ii) Whether credit societies which do not dispense agricultural credit
for a certain period of time because of either paucity of funds or
borrowers are debarred from “dispensing agricultural credit” because of
some legal prohibition or any other reason operating temporarily cease to
be societies whose objective is to provide agricultural credit?
31. Credit Societies against which there is an ‘interim order’ of winding
up are temporarily debarred from dispensing agricultural credit, by virtue
of the operation of law. The embargo imposed by such interim order may or
may not fructify into a final order of winding up. (We have already
discussed this aspect of the matter at para 21 supra). On the face of such
possibility of the society resuming its activity of “dispensing
agricultural credit” - to debar its managing committee members from
discharging their statutory obligation under the MARKETS ACT would be
productive of public mischief. Such an interpretation of the statute must
be avoided.
32. For the above reasons, we do not see any merit in the appeals.
Therefore, the appeals are dismissed.
….………………………….J.
(J. Chelameswar)
…….……………………….J.
(Prafulla C. Pant)
New Delhi;
November 16, 2016
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[1]
Section 2 (xiii) “market area” means any area declared or
deemed to be declared to be a market area under this Act;
Section 2(xiv) “market committee” means a market committee
established or deemed to be established under this Act;
[2] Section 2(17) of the Gujarat Co-operative Societies Act, 1961 -
“Registrar” means a person appointed to be the Registrar of Co-operative
Societies under this Act; and includes to the extent of the powers of the
Registrar conferred on any other person under this Act, such person and
includes an Additional or Joint Registrar;
[3] Section 107 Winding up – (1) [Except as otherwise provided in sub-
section (1A) if the Registrar, –-
(a) after an inquiry has been held under section 86, or an inspection
has been made under any of the provisions of sub-section (8) of section 84,
section 87 or section 88 or on the report of the auditor auditing the
accounts of the society, or]
(b) on receipt of an application made upon a resolution carried by
three-fourths of the members of a society present at a special general
meeting called for the purpose, or
(c) of his own motion, in the case of a society which –
(I) has not commenced working, or
(ii) has ceased working, or
(iii) possesses shares of members deposits not exceeding
five hundred rupees, or
(iv) has ceased to comply with any conditions as to
registration and management in this act or [the rules or the bye-laws, or]
(v) has failed to comply with any directions issued under sub-
section (1) of Section 160 or such directions as modified under sub-section
(2) of that section.]
is of the opinion that a society ought to be wound up, he may
make an interim order directing it to be wound up.
[4] We take the facts of the first respondent society in Civil
Appeal No. 3891/2015 as representative facts of the 8 appeals.
[5] See F/N 9 infra
[6] Section 2(ix) – “licence” means a licence granted under section 6
or, as the case may be, a general or special licence granted under section
27;
[7] Section 2(v) – “co-operative marketing society” means a society
registered or deemed to be registered as such under the Gujarat Co-
operative Societies Act, 1961 (Guj. X of 1962), and engaged in the business
of buying or selling of agricultural produce or of possessing of
agricultural produce and holding a licence;
[8] Section 2(xi) – “local authority” means –
a corporation constituted under the Bombay Provincial Municipal
Corporation Act, 1949 (Bom. LIX of 1949); or
a municipality constituted or deemed to be constituted under –
the Bombay District Municipal Act, 1901 (Bom. III of 1901), or that
Act as adapted and applied to the Saurashtra area; or
the Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of 1925), or that
Act as adapted and applied to the Saurashtra area or that Act as applied to
the Kutch area; or
(c) a village panchayat constituted or deemed to be constituted
under the Bombay Village Panchayats Act, 1959 (Bom. III of 1959), or a gram
panchayat or nagar panchayat constituted under the Gujarat Panchayat Act,
1961 (Guj. VI of 1962);
[9] Section 108. Appointment of Liquidator - (1) When an interim
or final order is made under Section 107 for the winding up of a society,
the Registrar may, in accordance with the rules appoint a person to be the
liquidator of the society, and fix his remuneration.
(2) Where an interim order is made the officers of the society shall
hand over to the liquidator the custody and control of all the property,
effects and actionable claims to which the society is or appears to be
entitled, and of all books, records and other documents pertaining to the
business of the society and, shall have no access to any of them.
[10] 108 (3) When a final order is made confirming the Interim, order,
the officers of the society
xxx xxx xxx xxx
(b) shall vacate their offices and while winding up order remains in
force the general body of the society shall not exercise any powers.
[11] Section 2(14) of the SOCIETIES ACT. – “officers” means a person
elected or appointed by a society to any office of such society according
to its bye-laws; and includes a chairman, vice-chairman, president, vice-
president, managing director, manager, secretary, treasurer, member of the
committee, and any other person elected or appointed under this Act, the
rules or the bye-laws, to give directions in regard to the business of such
society.
[12] Section 4. Societies which may be registered.— A society, which
has as its object the promotion of the economic interests or general
welfare of its members or of the public, in accordance with co-operative
principles, or as society established with the object of facilitating the
operations of any such society, may be registered under this Act.
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