Hon'ble Rakesh Srivastava,J.
[Per Dinesh Maheshwari, J.] Preliminary These writ petitions and intra-Court appeals, being intrinsically co-related on the basic issue concerning the status of U.P. Postal Primary Co-operative Bank Limited [hereinafter also referred to as 'the Society' or 'UPPCB' for brevity], have been considered together and are taken-up for disposal by this common judgment.
For a preliminary outline, it could be noticed that the matter concerning status of the Society in question has arisen in the wake of bifurcation of the then existing State of Uttar Pradesh (U.P.) and creation of a new State of Uttaranchal (now Uttarakhand) comprising a few districts of the undivided State of U.P. under the Uttar Pradesh Reorganisation Act, 2000 [hereinafter referred to as 'the Reorganisation Act of 2000']. The stand of the petitioner No.1 of Writ Petition No.1892 (MB) of 2010 Sri Hemant Kumar [he is hereinafter referred to as 'the petitioner-Hemant Kumar] is that the Society in question, even though earlier functioning as a Co-operative Society under the U.P. Co-operative Societies Act, 1965 [hereinafter referred to as 'the U.P. Act of 1965'], became a Multi-State Co-operative Society [MSCS] under the Multi-State Co-operative Societies Act, 1984 [hereinafter referred to as 'the Act of 1984'] and is now governed by the Multi-State Co-operative Societies Act, 2002 [hereinafter referred to as 'the Act of 2002']. Per Contra, the stand of the Society is that it has always been, and is, functioning as a Co-operative Society under the U.P. Act of 1965 and is not to be governed by the Act of 2002. In fact, it is urged on behalf of the Society that the Act of 2002 is not a valid legislation and at any rate, the provisions contained in its Section 103 for deemed registration of a society as MSCS are invalid.
In this batch of writ petitions and intra-court appeals, Writ Petition No.1892 (MB) of 2010 was filed on 08.03.2010 by the the petitioner-Hemant Kumar with another petitioner assailing the order dated 22.01.2010 passed by the Joint Secretary (Co-operative) and Central Registrar, Co-operative Societies, New Delhi. By the impugned order dated 22.01.2010, the representation, seeking action qua the Society in question under the Act of 2002 in terms of the Judgment of the Hon'ble Supreme Court dated 20.10.2009 as passed in Civil Appeal No.290/2005 (whereby the Society in question was held to have become MSCS under the Act of 1984 but the issue of change of its bye-laws was left open to be agitated in accordance with law), was rejected by the Central Registrar after observing that the Society in question is, and has always been, functioning as a Co-operative Society under the U.P. Act of 1965.
The aforesaid order dated 22.01.2010 came to be passed by the Central Registrar, pursuant to the directions issued by this Court in the previous petition filed by the petitioner-Hemant Kumar, being Writ Petition No.10257 (MB) of 2009. However, while the matter was pending before the Central Registrar, the Society, i.e., U.P. Postal Primary Co-operative Bank Limited and its Committee of Management preferred the leading writ petition No. 339 (MB) of 2010 on 12.01.2010 seeking to question the validity of the Act of 2002. In this writ petition [No.339 (MB) of 2010], though the background aspects relating to the claim made by the petitioner-Hemant Kumar and the orders passed by this Court and by the Hon'ble Supreme Court have been referred, but no order as such has been challenged. In this writ petition, the Society has, of course, suggested that it stood registered under the U.P. Act of 1965 and any restriction or regulation on its activities by or under the Act of 2002 was entirely illegal and unauthorised.
It may also be noticed at the outset that the other writ petition in this batch of matters [No. 2969 (MB) of 2010] was filed by the petitioner-Hemant Kumar on 31.03.2010, seeking to question a previous notice dated 19.03.2009 issued by the District Assistant Registrar, Co-operative Societies, U.P., Lucknow, but it is an admitted position of the parties that this writ petition was practically infructuous. As such, nothing further is required to be dealt with so far Writ Petition No.2969 (MB) of 2010 is concerned.
So far the connected intra-Court appeals are concerned, the State of U.P. and its officers in the Co-operative Department as also U.P. Postal Primary Co-operative Bank Limited have questioned therein the common order dated 11.02.2010 passed in a batch of four petitions led by Writ Petition No.1719 (SS) of 2008 and another order dated 22.03.2010 passed in Writ Petition No.7739 (SS) of 2009. The common feature of these appeals is that they arise out of the writ petitions filed by certain employees of the Society, seeking to question the order passed by the Joint Registrar, Co-operative Societies, U.P., Lucknow directing the District Assistant Registrars to remove them and the consequential orders dated 29.02.2008, by means of which, they were removed from service.
The basic contention of the said writ petitioners before the learned Single Judge was that the U.P. Act of 1965 was not applicable in respect of UPPCB as it had already become a Multi-State Co-operative Society and was to be governed by the Act of 2002. The learned Single Judge allowed such writ petitions essentially relying on the said decision of the Hon'ble Supreme Court dated 20.01.2009, which shall be referred hereafter for its direct bearing and relevance. Suffice it to notice for the preliminary outline that the learned Single Judge ultimately held as under:-
"The petitioners, therefore, were illegally ousted from the services where as in fact there was no authority vested with the opposite parties to terminate the services of the petitioners as the Society was Multi State Co-operative Society and not a Co-operative Society governed under the U.P. Co-operative Societies Act.
"The argument of the learned counsel for the opposite parties that appointments were made from the back door also can not be accepted in view of the fact that there is specific pleading that appointments in the Bank were made in the like nature in the past and prior to 1998 but those appointments were not disturbed nor they were cancelled. Two standards can not be applied for cancelling the appointments of all the employees of the Bank and an uniform principle has to be applied and since the Court is not adverted towards merit and demerit of the matter, in fact the validity of the appointments at the moment on account of the fact that initial jurisdiction to proceed with the matter was not vested with the opposite parties, therefore, the present writ petitions deserve to be allowed solely on the ground that the action of the opposite parties is without jurisdiction and they were not authorised to terminate the services of the petitioners."
The principal contention of the appellants in these appeals is that the said order passed by the Central Registrar on 22.01.2010 was not considered by the learned Single Judge and the Society was wrongly held to be a Multi-State Co-operative Society.
From the above narrative, it is but clear that the basic issue involved in all these matters is about the status of U.P. Postal Primary Co-operative Bank Limited, i.e., as to whether it is a Co-operative Society governed by the U.P. Co-operative Societies Act, 1965 or it is a Multi-State Co-operative Society governed by the Multi-State Co-operative Societies Act, 2002.
However, by way of Writ Petition No.339 (MB) of 2010, U.P. Postal Primary Co-operative Bank Limited has assailed the very validity of the entire Act of 2002 and, in the alternative, the validity of its Section 103 providing for deemed registration of a co-operative society as MSCS if its objects extend to more than one State after reorganisation of the State/States. If the contentions urged on behalf of UPPCB are accepted and the entire Act of 2002 and/or the questioned provisions are held invalid, there may not arise any question of it being governed by the said enactment, i.e., Multi-State Co-operative Societies Act, 2002. However, before examining such contentions, basic factual and background aspects relating to these writ petitions, but shorn of unnecessary or irrelevant facts, deserve to be taken note of.
Relevant factual and background aspects The Society in question, i.e., U.P. Postal Primary Co-operative Bank Limited was initially registered on 21.08.1915 as a Co-operative Society under the then applicable provisions of Co-operative Societies Act, 1912. In the year 1965, the Legislature of State of U.P. enacted the U.P. Co-operative Societies Act, 1965 and Section 13 thereof provided for existing co-operative societies and their deemed registration under this enactment. On 16.02.1974, UPPCB appears to have amended its bye-laws after being governed by the Act of 1965 and the same were registered with the Registrar, Co-operative Societies, U.P. According to clause (3) of these bye-laws, the area of operation of the Society was specified to be that of "U.P. Postal Circle and R.M.S. Circle". It is not in dispute that the area of operation of the Society at the relevant time extended to the entire State of U.P., as then existing before its division by the U.P. Reorganization Act, 2000 whereby, the State of Uttaranchal (now Uttarakhand) was created, comprising the territories of some of the districts, which had earlier been the part of the undivided State of U.P.
Before the aforesaid Reorganization Act of 2000, the Parliament had enacted Multi-State Co-operative Societies Act, 1984 and Section 95 thereof carried the provisions in respect of Societies, which would become Multi-State Co-operative Societies consequent on reorganization of States. It was provided in this Section 95 of the Act of 1984 that if by virtue of any enactment relating to reorganization of States, any co-operative society, which had its objects confined to one State before the date of reorganization, becomes as from the date of reorganization a Multi-State Co-operative Society, it shall be deemed to be Multi-State Co-operative Society registered under the corresponding provisions of the Act of 1984.
It has been the contention of the petitioner-Hemant Kumar that by virtue of Section 95 of the Act of 1984, U.P. Postal Primary Co-operative Bank Limited became a Multi-State Co-operative Society w.e.f. 09.11.2000, i.e., the date of bifurcation of the State of U.P. with creation of State of Uttaranchal (now Uttarakhand).
The dispute leading to multiple litigations ensued when the Deputy Registrar, Co-operative Societies, U.P., Lucknow Region required the Society to remove the petitioner-Hemant Kumar from the office of Vice-Chairman under Section 38 (1) of the Act of 1965 on the ground that he had participated in the election for the Committee of Management for a third consecutive term whereas he was not entitled to do so and as such, had incurred disqualification for holding the office of Vice-Chairman.
According to the petitioner-Hemant Kumar, a meeting of the Committee of Management was held on 05.03.2001 and it was resolved that he had not incurred any disqualification. However, the Deputy Registrar concerned issued a notice dated 15.03.2001 requiring the petitioner-Hemant Kumar to show cause as to why he be not removed from the office of Vice-Chairman of the Committee of Management of the Society. The said notice was challenged by the petitioner-Hemant Kumar in Writ Petition No.1261 (MB) of 2001 principally on the ground that UPPCB had become a Multi-State Co-operative Society w.e.f. 09.11.2000, i.e., the date of creation of the State of Uttarakhand by operation of Section 95 of the Act of 1984 because the area of operation of this Society extended to more than one State, i.e., State of U.P. as also the State of Uttarakhand. Thus, it was the contention of the petitioner-Hemant Kumar that the U.P. Co-operative Societies Act, 1965 did not apply to UPPCB and as such, the authorities under the Act of 1965 were having no jurisdiction over this Society. An interim order was passed in the said writ petition by this Court directing the petitioner-Hemant Kumar to file objections to the said notice; and while also directing the Deputy Registrar concerned to proceed in accordance with law, it was provided that any order of removal of the petitioner-Hemant Kumar would not be given effect to.
By yet another resolution dated 22.03.2001, the Committee of Management of the Society again resolved that the petitioner had not incurred disqualification and was not to be removed from the office of Vice-Chairman. However, the Deputy Registrar, Co-operative Societies, Lucknow Region, proceeded to pass an order dated 25.04.2001 for removal of the petitioner-Hemant Kumar from the office of Vice-Chairman, but the said order was not implemented in view of the interim order passed by this Court. Moreover, by a notice dated 13.06.2001, the said Deputy Registrar required the Society to show cause as to why it be not superseded on the basis of various allegations of irregularities. This led to the Committee of Management of the Society approaching this Court in Writ Petition No.3439 (MB) of 2001 again principally on the ground that the Society had become a Multi-State Co-operative Society w.e.f. 09.11.2000 and as such, the authorities under the U.P. Co-operative Societies Act, 1965 were having no jurisdiction over it. An interim order was passed in this writ petition on 08.08.2001 restraining the respondents from taking any adverse action against the Committee of Management of the Society. During the pendency of the aforesaid writ petitions, the Parliament enacted the Multi-State Co-operative Societies Act, 2002 replacing the earlier enactment of the same purpose, i.e., Mutli-State Co-operative Societies Act, 1984.
Such a dispute, as regards status of this nature Society, whose objects became referable to two States after bifurcation of the State of U.P., was not confined to the U.P. Postal Primary Co-operative Bank Limited alone, but the same nature dispute spurt up in relation to other Societies too including U.P. Co-operative Processing and Cold Storage Federation Ltd. [in short 'PACSFED'] and U.P. Bank Employees Co-operative Credit Society Limited. This led to several writ petitions in this Court including Writ Petition No.5171 (MB) of 2002. All such writ petitions were heard together by a Division Bench of this Court and were decided by the common order dated 10.11.2004 wherein essentially, it was held that such co-operative societies were not the Multi-State Co-operative Societies and they were to be governed only by the U.P. Act of 1965. Immediately thereafter, an order was passed by the Deputy Registrar, Co-operative Societies, U.P., suspending the Committee of Management of UPPCB and the Committee of Management comprising of the petitioner-Hemant Kumar as Vice-Chairman revived, who were granted time until 15.12.2004 to submit reply to the aforesaid show cause notice dated 13.06.2001.
The aforesaid order dated 10.11.2004 was, however, questioned before the Hon'ble Supreme Court in a batch of appeals led by Civil Appeal Nos.292-294 of 2005 by different Societies or their Committees of Management. In relation to the Society in question, i.e., U.P. Postal Primary Co-operative Bank Limited, three appeals were filed before the Hon'ble Supreme Court challenging the same order dated 10.11.2004. Civil Appeal Nos.8020 of 2004 and No. 291 of 2005 were filed by the Society whereas Civil Appeal No.290 of 2005 was filed by the petitioner-Hemant Kumar.
Noticeable it is that Civil Appeal No.290 of 2005 filed before the Hon'ble Supreme Court against the aforesaid order dated 10.11.2004 in relation to Writ Petition No.1261 (MB) of 2001 was in fact dismissed by the Hon'ble Supreme Court on 05.02.2009 for want of prosecution. On the other hand, Civil Appeal Nos.8020 of 2004 and 291 of 2005 were withdrawn by the Society. Rest of the appeals were heard together and all such appeals concerning different Societies were allowed by the Hon'ble Supreme Court on 06.05.2009. It was, inter alia, held that PACSFED became a Multi-State Co-operative Society w.e.f. 09.11.2000, i.e., the date of creation of the State of Uttarakhand. This decision of the Supreme Court as rendered on the cause title Naresh Shankar Srivastava vs. State of U.P. is reported in AIR 2009 SC at page 2450. Thereafter, Civil Appeal No.290 of 2005 filed by the present petitioner-Hemant Kumar before the Hon'ble Supreme Court was restored on 06.09.2009 and the same was allowed on 20.10.2009 essentially following the aforesaid judgment and order dated 06.05.2009 as rendered in the similar cases of other societies. This order of the Hon'ble Supreme Court dated 20.10.2009 having its direct relevance in the present matters could be noticed, in extenso, as under:-
"This appeal, by special leave, arises out of a common judgment rendered by the High Court of judicature at Allahabad in W.P.NO. 1261 (M/B) of 2001 and other batch of connected matters. The special leave petition came up for motion hearing on 5th of January, 2005. While granting leave, it was directed that the same shall be heard along with other connected appeals including C.A.No. 8020/2004 (arising out of SLP(C) No.24426/2004).
When the entire batch of appeals came up for hearing on 5/2/2009, the present appeal was dismissed for non-prosecution as no one had appeared for the appellant. However, vide order dated 6th July, 2009, the appeal was restored. That is how the appeal has now been listed for final disposal.
The batch of appeals arising out of the aforementioned common order has since been decided. Vide judgment dated 6th May, 2009, reported as AIR 2009 SC 2450, it has been held that:
"The area of operation of the PACSFED as laid down in its bye-laws is still the same as it was on the date of the re-organization of the State of U.P. Therefore, it would be legally impermissible to say that now the area of operation of the PACSFED is confined to the State of U.P. alone and that it has ceased to be a multi-State Cooperative Society. As far as withdrawal of member-co-operative societies of the PACSFED operating in the State of Uttaranchal is concerned, the deemed conversion of a co-operative society into a multi-State co-operative society by virtue of Section 95 of the Multi-State Act is an irreversible process and the membership of a multi-State cooperative society in a particular State at a given point of time is only a fortuitous circumstance on the basis of which a multi-State society cannot automatically revert to assume the character of a State cooperative society. Further, there is no provision in the Multi- State Act which permits such automatic conversion of a multi-State cooperative society into a State cooperative society by operation of law. The only relevant consideration for continuance of a multi-State cooperative society as a multi-State cooperative society is that it should have its objects not confined to one State and since the objects of the PACSFED still remain the same as it was immediately before the reorganization of the State of Uttar Pradesh, it shall be deemed to be a Multi-State co-operative society by virtue of deeming provision of Section 95 of the Multi-State Act."
Thus, all appeals preferred by the societies in those cases have been allowed and the judgment of the High Court has been set aside.
Mr. Dinesh Dwivedi, learned senior counsel appearing on behalf of Respondent No.3 - Society submitted before us that although the legal issue raised in the appeal stands concluded in favour of the appellant but in view of the fact that in the meanwhile the bye-laws of the respondent-Society have been amended, no relief can be granted to the appellant.
We are unable to agree with the learned counsel. It is manifest from the impugned judgment that such a plea was neither raised nor dealt with by the High Court. It is not in dispute that all the writ petitions before the High Court on the issue were heard together and were disposed of by a common judgment. Even at the time of hearing of the disposed of aforementioned appeals no factual distinction in individual cases was brought to the notice of the Court. But for the dismissal of the present appeal for non-prosecution, it would have also formed part of the disposed of group matters.
Accordingly, following the said judgment, with which we are in respectful agreement, the impugned order is set aside and it is held that respondent No.3-Society shall be deemed to be a Multi state Cooperative Society by virtue of deeming provision of Section 95 of the Multi-State Act.
We may, however, clarify that if there have been any changes in the bye-laws of the Society, it will be open to it to agitate the issue in accordance with law.
The appeal stands disposed of accordingly, with no order as to costs."
As noticed, there was nothing to dispute that the legal issue raised in the appeal stood concluded in favour of the appellant, i.e., the petitioner-Hemant Kumar and the Society was held to be a Multi-State Co-operative Society by virtue of deeming provision of Section 95 of the Act of 1984. However, as regards the suggestion on behalf of the Society that it had changed its bye-laws, the Hon'ble Supreme Court left it open for the Society to agitate the issue in accordance with law.
On 26.10.2009, in pursuance of the aforesaid judgment of the Hon'ble Supreme Court, the petitioner-Hemant Kumar moved a representation before the Central Registrar, Co-operative Societies with a prayer that appropriate action be taken in relation to the Society in question under the provisions of the Act of 2002. Thereafter, the petitioner-Hemant Kumar filed another writ petition in this Court bearing No.10257 (MB) of 2009 challenging continuance of the existing Committee of Management despite judgment of the Supreme Court and complaining of inaction on the part of the Central Registrar. By an interim order dated 03.11.2009, this Court directed the petitioner-Hemant Kumar as also the Society to appear before the Central Registrar on 09.11.2009 and the Central Registrar was directed to decide the representation filed by the petitioner-Hemant Kumar. However, the said representation remained pending and ultimately, the writ petition was finally disposed of on 23.12.2009 with directions to the Central Registrar for taking final decision on the representation of the petitioner by 08.01.2010 or within next 15 days.
In compliance of the directions aforesaid, Central Registrar ultimately proceeded to decide the representation of the petitioner-Hemant Kumar by the order dated 22.01.2010, which is the subject matter of challenge in Writ Petition No.1892 (MB) of 2010. The entire of this order specifying the stand of the parties as also the findings of the Central Registrar deserve to be taken note of and hence, the order dated 22.01.2010 is reproduced, in extenso, as under:-
"Hon'ble High Court of Allahabad (Lucknow Bench) vide interim order dated 3rd November, 2009 in W.P. No.10257 of 2009 in the matter of Hemant Kumar v/s Union of India and Others has, inter-alia, ordered as under :-
" .... In the meantime, petitioner's representation pending before the Central Registrar be considered and disposed off in accordance with law, after affording opportunities to the parties concerned and if the petitioner so wishes, he may also file additional representation, which may also be considered and disposed of in accordance with law.
The orders so passed on the representation shall be placed before the court on the next date of listing. ...
On the request of petitioner's counsel let all the parties be present before the Central Registrar on 9.11.2009."
2. In pursuance of the aforesaid order, the petitioner (Shri Hemant Kumar) and the respondent No.5 (Secretary, UP Postal Primary Cooperative Bank Ltd., Lucknow) in person and the representatives of the respondents No.3 (Principal Secretary, Cooperative Department, Uttar Pradesh) and respondent No.4 (Registrar of Cooperative Societies, Uttar Pradesh) in the above W.P. were present before this authority on 9.11.2009. The petitioner presented copies of representations dated 26.10.2009 and 9.11.2009 as well as copy of W.P. No.10257 of 2009. The respondents No.3 to 5 were directed to file their replies to the aforesaid representations within 2 weeks and the matter was adjourned to 1st December, 2009.
3. On 1st December, 2009, the learned counsels for the petitioner as well as for respondents No. 3 to 5 were present. While respondent No.5 filed reply to the representations dated 26.10.2009 and 9.11.2009, respondents No.3 and 4 sought 4 weeks time to file reply, which was granted and the case was adjourned to 8th January, 2010.
4. The hearing fixed for 8.1.2010 was postponed to 28.1.2010 due to certain unavoidable circumstances. The learned counsel for the petitioner and respondents No.3 to 5, however, came on 8.1.2010 as they had presumably not received the notice of postponement of the hearing from 8.1.2010 to 28.1.2010. The petitioner produced a copy of another order dated 23.12.2009 of the Hon'ble High Court in abovementioned W.P. directing this authority to decide the pending representations of the petitioner on 8.1.2010 and if it is not possible to decide the matter on the said date for any valid reason, then the same shall positively be decided within next 15 days.
5. Although, this authority decided to hear the matter on 8.1.2010 itself in the afternoon, since it was not convenient to the counsel for respondent No.3 and 4, the hearing was fixed for 12.1.2010 at 11 A.M.
6. The case came up for hearing on 12.1.2010. The respondents filed additional replies to representations dated 26.10.2009 and 9.11.2009, copies of which were already furnished to the counsel for petitioner. The counsel for the petitioner mentioned that he had received copies of additional replies and that he did not propose to file any rejoinder reply to the additional replies of respondents.
7. Detailed arguments were heard in the matter on 12.1.2010. The counsel for the petitioner stated that on reorganization of U.P. in to U.P. and Uttaranchal w.e.f. 9.11.2000, the U.P. Primary Postal Cooperative Bank Ltd. (hereinafter referred to as 'Society') has become a Multi-State Cooperative Society (hereinafter referred to as the 'MSCS') under the Multi-State Cooperative Societies Act, 2002 (hereinafter referred to as the 'MSCS Act, 2002') by virtue of Section 103 of the Act. Though, for administrative reason, the UP Postal Circle has been divided but there is nothing on record to show that the division of assets and liabilities of the society has been done by the CRCS in accordance with the provisions of the MSCS Act, 2002. He also mentioned that the Hon'ble Supreme Court vide order dated 6.5.2009 in the case of Naresh Shankar Srivastava (AIR 2009 SC 2450) and order dated 25.10.2009 in the case of Hemant Kumar vs Registrar, Cooperative Societies, U.P. and others (Civil Appeal No.290 of 2005) has held that the Society shall be deemed to be a MSCS by virtue of deeming provisions of section 95 of MSCS Act, 1984 (section 103 of MSCS Act, 2002). The petitioner, therefore, requested that the Committee of Management of which he was elected as Vice-Chairman, be reinstated and allowed to continue till the expiry of its term of 5 years, or, in the alternative the existing Committee of Management of the Society be superseded under section 123 of the MSCS Act, 2002 and Administrators be appointed to manage the affairs of the Society till a regular Board is elected or an interim Board be appointed under the rule 14 of the MSCS Rules, 2002.
8. The learned counsel for respondent No.5 submitted his arguments which are summarized below:-
a) On 12.1.2001, the Government of India, Department of Posts had created a separate Uttaranchal Postal Circle comprising of areas falling in Uttaranchal State, which earlier formed part of the U.P. Postal Circle.
b) The petitioner had filed W.P. No. 1261 of 2001 in the Hon'ble High Court of Allahabad (Lucknow Bench) challenging the show-cause notice issued by the Registrar of Cooperative Societies, U.P. as to why he should not be removed from the post of Vice-Chairman of the Society as he has been elected third time in violation of rule 449 (1) of the UP Co-operative Societies Rules, 1968. Hon'ble High Court vide interim Order dated 21.3.2001 directed RCS, UP to decide the matter in accordance with law. The aforesaid interim order shows that Hon'ble High Court never expressed that the Society will be governed by MSCS Act, 1984 after 9.11.2000.
c) Hon'ble High Court of Allahabad (Lucknow bench) vide order dated 10.11.2004 in W.P. No.3439 of 2001 held that the Society would be governed by the provisions of UP Cooperative Societies Act, 1965.
d) Elections of the Committee of Management of the Society have been held in the year 2000, 2005 and 2008 in accordance with the provisions of UP Cooperative Societies Act, 1965 and Shri Hemant Kumar had participated in these elections.
e) Later, on 3 SLPs were filed in the Hon'ble Supreme Court against the order of Hon'ble High Court dated 10.11.2004 in W.P. No. 3439 of 2001. However, Hon'ble Supreme Court vide order dated 5.1.2005 refused to grant stay on the High Court order. Therefore, the Society continued to function under UP Cooperative Societies Act, 1965.
f) Thereafter, a resolution was passed in the Special AGM of the bank held on 13.2.2006 that the Society would function under UP Cooperative Societies Act, 1965. Accordingly, the Society had withdrawn Civil Appeal No.291 of 2005 and 8020 of 2004 which were dismissed by the Hon'ble Supreme Court as withdrawn.
g) Bye-laws of the Society were mended in August, 2006 specifying U.P. Postal Circle as the area of operation of the bank.
h) On the request of the Society, RBI passed an order dated 22.6.2009, shifting Nainital and Dehradun branches of the Society to Gautam Budha Nagar and Mahoba in U.P. Public Notices were issued on 29.6.2009 in newspapers intimating the public in general that the Nainital and Dehradun branches of the society were being shifted in the State of U.P. and the customers were requested to withdraw their money from the respective branches at Nainital and Dehradun by 15.7.2009 failing which they may withdraw their amount from the corresponding nearest branch of the Society at Bareilly and Saharanpur after 15.7.2009.
i) In view of amendments in the bye-laws of the Society, the employees in Uttaranchal Postal Circle could not remain the members of the Society and therefore, most of them have joined "Dak Tar Karmachari Credit Evam Thrift Sahakari Samiti Ltd., Dehradun" and presently they are availing loan facilities from that Society.
j) On 20.10.2009, Hon'ble Supreme Court dismissed Civil Appeal No.290 of 2005 saying that the Society would be deemed to have been converted into a MSCS, under the section 103 of MSCS Act, 2002. Hon'ble Supreme Court, however, clarified that if there have been any changes in the bye-laws of the Society, it will be open to it to agitate the issue in accordance with law. Under the de-facto doctrine, the various actions taken by the Society including amendment of bye-laws are valid.
k) The Society has not been registered as an MSCS till date under MSCS Act, 1984 or MSCS Act, 2002.
9. Concluding his arguments, the counsel for respondent No.5 submitted that the request made by the applicant in his representations dated 26.10.2009 and 9.11.2009 could not be accepted. The applicant was elected as Vice-Chairman of the Society on 23.1.2000 for a period of five years and since the five year period has expired in January, 2005 and subsequently elections have been held to the Committee of Management of the Society on two occasions, his request for re-instatement to the said post could not be accepted. Section 123 of the MSCS Act, 2002 relates to the supersession of board of a specified multi-State cooperative society by the Central Government. In the instant case, the Central Government cannot supersede the existing Board of the Society under section 123 of the MSCS Act, 2002 as it is not a specified multi-State Cooperative society since the Central Government does not have fifty-one percent of the paid up share capital or of total shares, as per the explanation given under section 123 of the MSCS Act, 2002. The rule 14 of MSCS Rules, 2002 relates to the constitution of interim board and general meeting for the first election of a newly registered MSCS. Since the Society is an old Society and already registered under the State Act, the provision of rule 14 of MSCS Rules, 2002 are not applicable.
10. The counsel for respondents No.3 and 4 supported the arguments of the counsel for respondent No.5 in toto. He further mentioned that the bonafides and credentials of the applicant are doubtful since a criminal case against him has been registered in Lucknow. After bifurcation of U.P. into States of U.P. and Uttaranchal w.e.f. 9.11.2000, Central Government created a new Uttaranchal Postal Circle on 12.1.2001. After the amendments in the bye-laws on 4.8.2006, the area of operation of the Society is restricted to the State of U.P. and does not encroach upon the State of Uttaranchal. Two branches of the society at Nainital and Dehradun had been shifted to Mahoba and Gautam Buddha Nagar, which was duly approved by the RBI on 22.6.2009 and therefore, it is quite clear that the society have no operations beyond the territory of the State of U.P. He, therefore, contended that U.P. Cooperative Societies Act, 1965 would be applicable to the Society.
11. I have carefully gone through the averments made in the written submissions as well the arguments put forth by parties. In this context, the relevant paras of the Hon'ble Supreme Court's order dated 20.10.2009 in the Civil Appeal No.290 of 2005 are reproduced below:-
".... Accordingly, following the said judgment, with which we are in respectful agreement, the impugned order is set aside and it is held that respondent No.3 - Society shall be deemed to be a Multi state Cooperative Society by virtue of deeming provision of Section 95 of the Multi-State Act.
We may, however, clarify that if there have been any changes in the bye-laws of the Society, it will be open to it to agitate the issue in accordance with law.
The appeal stands disposed of accordingly, with no order as to costs."
12. Hon'ble Supreme Court while holding that the society shall be deemed to be a multi-State cooperative society, also clarified that "if there have been any changes in the bye-laws of the Society, it will be open to it to agitate the issue in accordance with law." I find that lot of developments have taken place in case of this Society from the date of bifurcation of U.P. into States of U.P. and Uttaranchal on 9.11.2000, which have had a major bearing on the functioning of the Society. These developments, inter-alia, include creation of a separate Uttaranchal Postal Circle by GOI on 12.1.2001, order dated 10.11.2004 in W.P.No. 3439 of 2001 of the Hon'ble High Court of Allahabad at Lucknow holding that the Society would be governed by the provisions of UP Act, the Committee of Management of the bank has been functioning in accordance with the provisions of UP Act, the elections for which were held in the year 2000, 2005 and 2008, the bye-laws of the Society have been amended based on the resolution of the general body meeting limiting the area of operation of the Society to U.P. Postal Circle, formation of a new Society i.e. "Dak Tar Karmachari Credit Evam Thrift Sahakari Samiti Ltd., Dehradun", the branches of the Society at Nainital and Dehradun have been shifted to Gautam Buddha Nagar and Mahoba in U.P., public notices had been issued regarding closure of the branches at Nainital and Dehradun asking members to withdraw their money, etc. I also find that there is nothing on record to show that the members from Uttaranchal Postal Circle have objected to the functioning of the bank under U.P. Cooperative Societies Act, 1965 and closure of the branches at Nainital and Dehradun. The objection is only from the petitioner who is presently a member of the society and residing in U.P.
13. Although, in view of the section 103 of the MSCS Act, 2002, the Society would have attained the status of a deemed multi-State co-operative society, however due to various actions taken by the Society regarding elections, amendment of bye-laws etc. as mentioned in para-12 above, Hon'ble High Court of Allahabad (Lucknow bench) vide aforesaid order dated 10.11.2004 holding that the Society would be governed by the UP Cooperative Societies Act, 1965 and even the Hon'ble Supreme Court refusing to say the aforesaid order of the High Court, the Society has in fact been functioning under the UP Cooperative Societies Act, 1965.
14. Further, I also find that the area of operation of the Society prior to bifurcation of the UP into State of UP and Uttaranchal was UP Postal and RMS Circle and not the State of UP and even after the amendment to the bye-laws of the Society on 4.8.2006, the area of the operation of the Society remains unchanged i.e. UP Postal Circle which falls within the territory of the State of U.P.
15. In this context, it would also be relevant to mention that the objective of a Multi-State Cooperative Society is to serve the interests of members in more than one State. It is a fact that U.P. Primary Postal Cooperative Bank continues to only serve the members of U.P. Postal Circle even after bifurcation of the State of UP.
16. In view of the above discussion, facts, circumstances and provisions of law, I do not find any merit in the request made by the petitioner in his representations dated 26.10.2009 and 9.11.2009. These representations stand disposed off accordingly.
17. This order shall, however, be subject to any further orders passed by the Hon'ble High Court in the writ petition.
Order be communicated to all parties."
As noticed, the petitioner-Hemant Kumar preferred Writ Petition No.1892 (MB) of 2010 on 08.03.2010 challenging the aforesaid order passed by the Central Registrar declining to enforce the Act of 2002 on the Society in question. However, before this writ petition of the petitioner-Hemant Kumar, the Society itself chose to file the leading Writ Petition No.339 (MB) of 2010 on 12.01.2010, seeking to question the validity of the Act of 2002. The reliefs as claimed in the Society's writ petition [No.339 (MB) of 2010] read as under:-
"(i) issue a writ of mandamus or a writ, order or direction in the nature of mandamus to declare the provisions of Multi-State Cooperative Societies Act, 2002 ultra vires the provisions of Article 246, read with Entry 32 List II and Entry 43 List I of Schedule VII of the Constitution and Article 248 read with Entry 97 Schedule VII of the Constitution in regards to its application in State of U.P.;
"(ii) issue a writ of mandamus or a writ, order or direction in the nature of mandamus, commanding the opposite party no.1 not to interfere (sic.) the provisions of Multi-State Cooperative Societies Act, 2002 in the State of U.P.;
"(iii) issue any other suitable writ, order or direction which this Hon'ble High Court deems fit and proper in the special circumstances of the present case in favour of the petitioners; and "(iv) Award the costs of the writ petition in favour of the petitioners."
In this Writ Petition No.339 (MB) of 2010, the principal contestant against the Society Shri Hemant Kumar was not joined as a party initially, but was later on ordered to be impleaded as respondent No.4.
There are a few supplemental or incidental facts available on record including that of an order dated 17.01.2007 as passed by the Uttarakhand High Court in Writ Petition No.608 (MB) of 2006 holding that the Society in question converted into MSCS w.e.f 09.11.2000 and the authorities under the U.P. Act of 1965 ceased to have any jurisdiction over the Society; and that the said order was later on recalled by the same High Court and Writ Petition No.608 (MB) of 2006 was dismissed as withdrawn on 28.09.2010. However, these aspects and a few more orders passed in different proceedings, though referred by the parties, need not be dilated upon, as they shall not have bearing on the issues involved herein.
Having briefly taken note of only the relevant and factual background aspects, we may now take-up the issues raised by the Society in Writ Petition No. 339 (MB) of 2010 at the first.
Writ Petition No.339 (M/B) of 2010 While questioning the validity of the Multi-State Co-operative Societies Act, 2002, UPPCB chose to file this writ petition on 21.01.2010, but without stating any specific cause of action for this petition. In essence, the petition only carries the grounds attacking the validity of the Act of 2002 but without spelling out in clear terms as to why this petition was necessitated at all. As noticed, the surrounding factors had been that at the given point of time, the Hon'ble Supreme Court had already ruled (on 20.10.2009) that UPPCB became a Multi-State Co-operative Society under the Act of 1984. The only option left available with the Society, in regard to its suggestion about the change of bye-laws, was to agitate the issue in accordance with law. Significantly, in this writ petition, the Society as the petitioner has not prayed for any declaration on the basis of alleged change of its bye-laws. It has also not been shown that the Society adopted any other proceedings for declaration of its status.
For what has been indicated above, the very maintainability of this petition would have been in question. However, from all the facts and circumstances as could be gathered from multiple litigations, the status of UPPCB i.e., as to whether it is a State Society governed by the UP Act of 1965 or a Multi-State Society governed by the Act of 2002 (earlier the Act of 1984) had been the core of dispute. In this backdrop, when the validity of the Act of 2002 has been put to question, it appears appropriate to examine and deal with such contentions of the Society because, as observed hereinbefore, if any of these contentions is upheld, the legal status of the Society would only be that of a State Society under the Act of 1965 and not otherwise.
Extensive arguments have been advanced on behalf of the Society, that the subject "cooperative society" is a State subject as per Entry 32 of List-II of Seventh Schedule of the Constitution of India [hereafter referred to as the 'State List'] and only the State Legislatures are competent to enact the laws relating to the co-operative societies; and that this subject being specifically excluded from Entry 43 of List-I of the Seventh Schedule of the Constitution of India [hereafter referred to as the 'Union List'], the Parliament is not competent to enact any law on the co-operative societies. Thus, according to the contentions on behalf of the Society, the Act of 2002 remains invalid for being beyond the legislative competence of Parliament. On behalf of the Society, Article 252 of the Constitution of India has also been referred to submit that, thereunder, the Parliament could legislate for two or more States on a State subject as included in State List but only with the consent of such States; and such a legislation could apply to any other State only on being adopted by the Legislature of such State. The submission on the part of the Society is that in the instant case, the Legislatures of the State of U.P. and the State of Uttarakhand having not adopted the necessary resolution, the Parliament could not have enacted the Act of 2002 and at any rate, this enactment cannot apply to these States. In the alternative, it is also submitted that in any case, the provisions as contained in Section 103 of the Multi-State Cooperative Societies Act, 2002 (its equivalent being Section 95 of the Act of 1984), which provide for deemed registration of a Co-operative Society of the State as a Multi-State Co-operative Society, are in gross violation of the provisions of Article 19 (1) (c) of the Constitution of India. The learned counsel for the Society has referred to and relied upon the decisions of the Hon'ble Supreme Court in Apex Cooperative Bank of Urban Bank of Maharashtra & Goa Ltd. Vs. Maharashtra State Cooperative Bank Ltd. and others [(2003) 11 SCC 66]; Greater Bombay Cooperative Bank Limited Vs. United Yarn Tex (P) Ltd. And others [(2007) 6 SCC 236]; and Andhra Pradesh Dairy Development Corporation Federation. Vs. B. Narasimha Reddy and others [(2011) 9 SCC 286].
Per contra, it has been contended on behalf of the respondents of this writ petition that the enactment in question is the valid piece of legislation and the source of powers of Parliament could be traced to Entry 44 of the Union List, as held by the Hon'ble Supreme Court in Greater Bombay Cooperative Bank Limited (supra). It has also been submitted that if there be any doubt about the enactment in question being made as per Entry 44 of the Union List, it is definitely referable to the residuary power of the Parliament per Article 248 read with Entry 97 of the Union List, as held by this Court in the case of Ram Raksha Tripathi Vs. Union of India (Writ Petition No.10780 of 1993 decided on 24.04.1995). It is yet further submitted in any case, the law in question is clearly saved by the Constitution (97th Amendment) Act, 2011 and Articles 243ZR and 243ZI of the Constitution of India.
Refuting the above-noted contentions in support of the validity of the enactment in question, it has been argued on behalf of the Society that the observations in Ram Raksha Tripathi's case are of no value and do not lay down correct law on the subject where the Division Bench of this Court relied on Article 248 of the Constitution of India and corresponding residuary Entry 97 of the Union List because any subject included or excluded from the concerned Entry in Union List cannot be covered by Article 248 of the Constitution of India. As regards other contention that in view of the Constitution (97th Amendment) Act, 2011 and Articles 243ZR and 243ZI, the law in question stood saved, it has been argued that this constitutional amendment enforced from 15.02.2012 cannot validate any enactment made by the Parliament before that date and therefore, the Act of 1984 and the Act of 2002 are not saved.
In their elaborate submissions, the learned counsel for the parties have taken us through the historical perspective of the enactments concerning the co-operative societies and the co-operative societies having multiple areas of operation; and the decision of the Hon'ble Supreme Court in Panchshila Industrial Co-operative Societies Vs. The Gurgaon Central Co-operative Bank Ltd., [(1971) PLJ 638] and entries as contained in the Government of India Act, 1935 have also been referred. However, it does not appear necessary to dwell into such historical aspects because, in our view, the arguments advanced on behalf of the Society are fundamentally unsustainable; and rather, the issue cannot be considered res integra for being concluded with the pronouncements of the Hon'ble Supreme Court.
For appreciation of the points raised for determination, the relevant Articles and Entries in the Constitution of India could be noticed as under:-
Article 246.
"246. Subject-matter of laws made by Parliament and by the Legislatures of States.--(1)Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution, referred to as the "State List"').
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List."
Article 248:
"248. Residuary powers of legislation.--(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists."
Article 252:
"252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.--(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.
(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."
Articles 243 ZR:
"243 ZR. Application to multi-State co-operative societies -- The provisions of this Part shall apply to the multi-State co-operative societies subject to the modification that any reference to "Legislature of a State", "State Act" or "State Government" shall be construed as a reference to "Parliament", "Central Act" or "the Central Government" respectively."
Article 243 ZI:
"243 ZI. Incorporation of co-operative societies -- Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the incorporation, regulation and winding up of co-operative societies based on the principles of voluntary formation, democratic member-control, member-economic participation and autonomous functioning."
Entries 43, 44 and 97 of List I (Union List) of the Seventh Schedule:
"43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations but not including co- operative societies.
"44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.
"97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists."
Entry 32 of List II (State List) of the Seventh Schedule:
"32. Incorporation, regulation and winding up of corporations, other than those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies."
True it is that in Entry 32 of the State List, incorporation, regulation and winding up of all corporations other than those specified in Union List is the leading item and the subject "co-operative societies" is also included therein, but this Entry 32 of the State List is not decisive of the matter at hands. A close look at Entries Nos. 43 and 44 of the Union List gives out the position as follows: In Entry 43 of the Union List, the Parliament is empowered to make laws in relation to incorporation, regulation and winding up of trading corporations including banking, insurance and financial corporations but not including co-operative societies. This Entry essentially relates to trading corporations including banking, insurance and financial corporations; and the subject relating to 'trading co-operative societies' is excluded from this Entry. On the other hand, Entry 44 of the Union List is of widest amplitude as it empowers the Parliament to make laws for incorporation, regulation and winding up of all nature corporations (whether trading or not--except universities) whose objects are not confined to one State. It is at once clear on a bare look at Entry 44 of the Union List that in relation to a corporation whose objects are not confined to one State, the law could be made only by the Parliament.
The learned counsel for the Society had painstakingly argued that the co-operative society is a "specie" whereas the "Corporation" is "genus", as explained by the Hon'ble Supreme Court in Greater Bombay Cooperative Bank Limited (supra); and has emphasized that when the "specie" i.e., "cooperative societies" has been excluded from the purview of the Parliament under Entry 43 of Union List, the Parliament cannot choose the same subject "co-operative societies" to make laws by virtue of Entry 44 under the general subject "Corporation" i.e., "genus". Learned counsel contended that the Entries are required to be examined on their pith and substance and are to be harmoniously construed. According to the learned counsel, if the field of Legislation to make laws in respect of co-operative societies by the Parliament is traced from Entry 44 of the Union List, then in that event, this Entry 44 would rob Entry 43 of its meaning and render it rather negatory. Learned counsel for the Society has referred to the decisions, inter alia, in State of A.P. And others. Vs. MCDOWELL & Co. and others [(1996) 3 SCC 709] and Calcutta Gas Company Vs. State of West Bengal [AIR 1962 SC 1044].
All the arguments on behalf of the Society, in our view, fall short of merit. The subtle distinction of two different subjects namely, 'co-operative societies' and 'co-operative societies with objects not confined to one State'; and the Parliament's power to enact laws in respect of the latter, is clearly explained by the Hon'ble Supreme Court in paragraph 89 of the decision in Greater Bombay Cooperative Bank Limited (supra) which is reproduced for ready reference as under:-
"89. In R. C. Cooper v. Union of India this Court observed that power to legislate for setting up corporations to carry on banking and other business and to acquire, hold and dispose of property and to provide for administration of the corporations is conferred upon Parliament by Entries 43, 44 and 45 of the Constitution. Therefore, the express exclusion of cooperative societies in Entry 43 of List I and the express inclusion of cooperative societies in Entry 32 of List II separately and apart from but along with corporations other than those specified in List I and universities, clearly indicated that the constitutional scheme was designed to treat cooperative societies as institutions distinct from corporations. Cooperative Societies, incorporation, regulation and winding up are State subjects in the ambit of Entry 32 of List II of the Seventh Schedule to the Constitution of India. Cooperatives form a specie of genus "corporation" and as such cooperative societies with objects not confined to one State are read in with the Union List as provided in Entry 44 of List I of the Seventh Schedule of the Constitution; the MSCS Act, 2002 governs such multi-State cooperatives. Hence, the cooperative banks performing functions for the public with a limited commercial function as opposed to corporate banks cannot be covered by Entry 45 of List I dealing with "banking". The subject of cooperative societies is not included in the Union List rather it covers under Entry 32 of List II of the Seventh Schedule appended to the Constitution."
(underlining supplied for emphasis) Even prior to the decision in Greater Bombay Cooperative Bank Limited (supra), the Hon'ble Supreme Court had indicated in Apex Cooperative Bank of Urban Bank of Maharashtra & Goa Ltd. Vs. Maharashtra State Cooperative Bank Ltd. and others (2003) 11 SCC 66, that the subject "co-operative societies with objects not confined to one State" would fall within the term "corporation" in the following:-
"25. Another aspect which must be noticed is that in the Constitution of India, the subject pertaining to cooperative societies is in the State List i.e. Entry 32 of List II of Schedule VII. The Union List has Entry 44 of List I of Schedule VII which deals with corporations. In this case we are not concerned with the validity of a Central legislation and thus do not deal with that aspect. For purpose of the Judgment we will take it that a cooperative society with objects not confined to one State would fall within the term corporation, and thus a Central legislation may be saved. However, from the constitutional provisions it is clear that matters pertaining to cooperative societies are in the State list. Thus many States have enacted laws relating to cooperative societies..."
(underlining supplied for emphasis) The learned counsel for the Society attempted to argue that in Greater Bombay Cooperative Bank Limited (supra) the Hon'ble Supreme Court had only indicated that the co-operative societies with objects not confined to one State "are read" in with the Union List as provided in Entry 44 but has not said that it 'should' be read in that Entry only. We are afraid, such a contention is rather far-stretched and cannot be countenanced for being not in conformity with the plain declaration of law by the Supreme Court in this decision. The Hon'ble Supreme Court, even while pointing out that the subject of 'co-operative societies' is not included in the Union List and is rather covered under Entry 32 of the State List, has clearly pointed out distinction so far the other subject i.e., "co-operative societies with objects not confined to one State" is concerned; and in relation to this other subject, the Supreme Court laid down in no uncertain terms that the same is covered in the wide expression of Entry 44 of the Union List. In the face of clear pronouncements by the Hon'ble Supreme Court, in our view, nothing further is required to be adjudicated on this issue.
The decision of this Court in Ram Raksha Tripathi (supra) was rendered on 24.04.1995, much before the above-referred decisions of the Hon'ble Supreme Court. True it is that in Ram Raksha Tripathi (supra), this Court held that the Act of 1984 was validly enacted by the Parliament on its residuary powers under Article 248 but in view of the decisions of the Hon'ble Supreme Court in Greater Bombay Cooperative Bank Limited (supra) and Apex Cooperative Bank of Urban Bank of Maharashtra (supra), there does not appear any requirement to dilate on this decision in Ram Raksha Tripathi any further. Similarly, the other contentions, with reference to the Constitution 97th Amendment are also not required to be dilated upon as the said amendment came into force much after the enactment of the Act of 1984 and the Act of 2002. However, as noticed, these enactments are referable to Entry 44 of the Union List and cannot be said to be beyond the legislative competence of the Parliament.
For what has been discussed above, the other contentions urged on behalf of the Society, with reference to Article 252 of the Constitution of India, are also of no relevance.
We may incidentally indicate that in the Scheme of the Entries in the lists carried in Seventh Schedule, the principles settled in the case of Union of India Vs. H.S. Dhillon [(1971) 2 SCC 779] and followed consistently are that on the legislative competence of Parliament, one has only to ask as to whether any subject relates to any of the entries in the State List; and if it does not, no further question need be asked and the Parliament's legislative competence must be upheld. In the present matter, even if the subject of incorporation, regulation and winding up of co-operative societies is included in Entry 32 of the State List, it does not relate to the subject of "co-operative societies whose objects are not confined to one State". On the other hand, as noticed, Entry 44 of Union List covers all corporations (and, obviously, co-operative societies are included therein) whose objects are not confined to one State. The subject being specifically covered by the Union List and being not available in the State List and then, for the law declared by the Hon'ble Supreme Court in Greater Bombay Cooperative Bank Limited and Apex Cooperative Bank of Urban Bank of Maharashtra (supra), the contentions urged on behalf of the Society against the Parliament's legislative competence in relation to the Act of 1984 or the Act of 2002 are required to be, and are, rejected.
The second limb of argument on behalf of the Society, with reference to the decision in Andhra Pradesh Dairy Development Corporation Federation (supra) is that Section 103 of the Act of 2002 (equivalent being Section 95 of the Act of 1984), providing for deemed registration of the Society as MSCS, is in gross violation of Article 19 (1) (c) of the Constitution of India. We are unable to agree with this submission either.
In the case of Andhra Pradesh Dairy Development Corporation Federation (supra), the validity of the provisions of Andhra Pradesh Mutually Aided Co-operative Societies (Amendment) Act, 2006 was in question whereby, the specified class of co-operative societies, i.e., Milk Co-operative Dairies was sought to be excluded from the operation of Andhra Pradesh Mutually Aided Cooperative Societies Act, 1995 and such milk dairies were deemed to be continued under the provisions of A.P. Cooperative Societies Act, 1964. On commencement of the Act of 1995, the existing Co-operative Societies registered under the Act of 1964 were given option to be registered under the Act of 1995 with certain conditions. Accordingly, many societies already registered under the Act of 1964 got themselves registered under the Act of 1995 and new societies were also registered under this Act of 1995. However, the effect of the questioned Act of 2006 had been of excluding Milk Dairy Co-operative Societies from the 1995 enactment and in that regard, a fiction was imported that such societies would be deemed to have been registered under the Act of 1964 with effect from the date of their registration under the Act of 1995. Such an amendment, depriving the dairy firms and milk producers from the operation of the Act of 1995 was held to be invalid. It was also held that importing of such fiction tantamounts to forcing the members of the Society to act under compulsion of the State, rather than free-will. In the given circumstances, while disapproving the Act of 2006, the Supreme Court said, "62. The 2006 Act had been enacted without taking note of the basic principles of cooperatives incorporated in Section 3 of the 1995 Act which provide that membership of a cooperative society would be voluntary and shall be available without any political restriction. The cooperative society under the Act would be a democratic organisation as its affairs would be administered by persons elected or appointed in a manner agreed by members and accountable to them.
63. The legislature has a right to amend the 1995 Act or repeal the same. Even for the sake of the argument, if it is considered that the legislature was competent to exclude the milk cooperative dairies from the operation of the 1995 Act and such an Act was valid i.e. not being violative of Article 14 of the Constitution, etc. the question does arise as to whether the legislature could force the society registered under the 1995 Act to work under the 1964 Act. Importing the fiction to the extent that the societies registered under the 1995 Act, could be deemed to have been registered under the 1964 Act tantamounts to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations. "
A close look at the decision aforesaid makes it clear that the hostile discriminatory treatment was sought to be handed down to a particular class of co-operative societies without any reason or justification; and 2006 amendment was rather operating against the free-will of the members forming co-operative society whereby the dairy milk cooperative societies were sought to be excluded from the coverage of the Act of 1995 and by fiction, were deemed to be registered under the Act of 1964 with effect from the date of registration under the Act of 1995. As the Act of 1964 and the Act of 1995 were operating slightly in different fields, and the option earlier given to the cooperative societies registered under the Act of 1964, to be covered by the Act of 1995, was sought to be undone in relation to milk dairy cooperative societies, the amendment enactment was held invalid. It is difficult to draw this analogy for the purpose of considering the validity of the Section 103 of the Act of 2002 or for that matter, Section 95 of the Act of 1984. The relevant parts of these provisions could be taken note of as under:
Section 95 (1) of the Act of 1984 "95. Co-operative societies functioning immediately before reorganisation of States --(1) Where by virtue of the provisions of Part II of the States Reorganisation Act, 1956, or any other enactment relating to reorganisation of States any co-operative society which immediately before the day on which the reorganisation takes place had its objects confined to one State becomes, as from that day, a multi-State co-operative society, it shall be deemed to be a multi-State co-operative society registered under the corresponding provisions of this Act and the bye-laws of such society shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force until altered or rescinded."
Section 103 (1) of the Act of 2002 "103. Co-operative societies functioning immediately before reorganisation of States --(1) Where, by virtue of the provisions of Part II of the State Reorganisation Act, 1956 (37 of 1956) or any other enactment relating to reorganisation of States, any co-operative society which immediately before the day on which the reorganisation takes place, had its objects confined to one State becomes, as from that day, a multi-State co-operative society, it shall be deemed to be a multi-State co-operative society registered under the corresponding provisions of this Act and the bye-laws of such society shall, in so far as they are not inconsistent with the provisions of this Act, continue to be in force until altered or rescinded."
The aforesaid decision in Andhra Pradesh Dairy Development Corporation Federation does not apply to the enactments like Multi-State Co-operative Societies Act, 1984 or Multi-State Co-operative Societies Act, 2002 for the simple reason that these enactments deal with an entirely different class of co-operative societies, whose objects extend to more than one State. Obviously, regulations of such Societies had to be provided by way of a Central Legislation in terms of Entry 44 of Union List, as already noticed. In such an enactment, fiction of deemed registration upon reorganisation of States appears to be a directly necessary provision so as to deal with such eventualities which would occur every time the supervening event of reorganization of State/s would take place.
Such a supervening event of reorganisation of the State/s, could and indeed brings out the position that a co-operative society which was having its objects confined to one State immediately before the day of reorganisation shall have its objects extending to more than one State due to such reorganisation. It is to meet with such eventuality that the Legislature has provided for deemed registration of such a Society as a Multi-State Co-operative Society; and, as held by the Hon'ble Supreme Court in Naresh Shanker Srivastava's case, (supra), such deemed registration is rather an irreversible process.
It cannot be said that by these deeming provisions, any of the rights guaranteed by Article 19 (1) (c) of the Constitution is taken away or even compromised. When a particular legislative event happens whereby the object of society does not remain confined to one State, the Society is obviously required to be dealt with as a corporation whose objects extend to more than one State. We see nothing of illegality or unconstitutionality in the aforesaid deeming provisions intended to deal with such an eventuality that has its genesis in another legislation. Such provisions cannot be regarded as being of infringement of the fundamental right guaranteed under Article 19 (1) (c) of the Constitution of India as they do not intend to curtail free-will of the members; rather, these provisions are entirely necessary for effectual operation of the law relating to Multi-State Co-operative Societies.
Learned counsel for the Society has vehemently argued that there are several safeguards and privileges available under the State enactment which are suddenly taken away if Multi-State Co-operative Societies Act, 2002 is applied to the State Societies and that causes serious prejudice to the members. We are afraid, the operation of a valid law cannot be obviated merely for alleged harsher consequences. Such contentions are hardly of any bearing on the validity of the enactments or any provision therein.
In view of what has been discussed hereinabove, challenge to the validity of the Act of 2002 as also Section 103 thereof fails. Neither the enactment nor the deeming provisions suffer any vice or unconstitutionality. The writ petition filed by the Society (Writ Petition No.339 (MB) of 2010) is, therefore, required to be dismissed.
Writ Petition No.1892 (MB) of 2010 As noticed, this writ petition is essentially directed against the order dated 22.01.2010 passed by the Central Registrar. We may, in the first place, deal with the submissions made on behalf of the respondents of this writ petition on the locus of the writ petitioners and maintainability of action on their behalf.
It is submitted that the petitioner No.2 has already withdrawn his membership from the Society and the petitioner No.1-Hemant Kumar has since retired from service on 31.08.2015 and therefore, no cause survives for the petitioners. We are afraid, this objection cannot be sustained and the proceedings in this writ petition cannot be terminated only with reference to the status of the writ petitioners.
The order impugned in this writ petition, i.e., the order dated 22.01.2010 by the Central Registrar has the practical effect of holding that the Society in question is to be governed by the U.P. Act of 1965 that stands contrary to the conclusion of the Hon'ble Supreme Court in its judgment dated 20.10.2009 that the Society in question shall be deemed to be a Multi-State Co-operative Society. Of course, the Hon'ble Supreme Court had clarified that if there were any changes in the bye-laws, it would be open for the Society to agitate the issue in accordance with law. Thus, the question remains to be seen if the findings returned by the Central Registrar are sustainable in law because they have the effect on the status of the Society which, in turn, has several repercussions. The status of the Society being in question, we see no reason or justification to terminate the proceedings of this writ petition only because of the subsequent event of the retirement of the petitioner-Hemant Kumar.
It has also been urged on behalf of the Society that an individual member cannot take-up the litigation against the decision of the Society. The decision of Hon'ble Supreme Court in Bihar Public Service Commission and another versus Dr Shiv Jatan Thakur and others [1994 Supp (3) SCC 220] and decisions of this Court in Dr. P. P. Rastogi and others versus Meerut University, Meerut and another [(1997) 1 UPLBEC 415] and Bhagwan Kaushik (Shri) versus State of U.P. [(2006) 2 UPLBEC 1834] have been referred in this regard.
In our view, this submission is also of no relevance or effect because the concluded decision had already been rendered by the Hon'ble Supreme Court as regards status of the Society and the matter was thereafter ordered to be dealt with by the Central Registrar in the orders of this Court passed in Writ Petition No.10257 (MB) of 2009. In the given status of record and the nature of issue involved with its implications, we are clearly of the view that the proceedings in this writ petition cannot be closed only on the question of locus of the petitioner/s. Such objections on behalf of the Society are, therefore, rejected.
On the merits of the case, it has been emphasized on behalf of the petitioner-Hemant Kumar that the order passed by the Central Registrar is in the teeth of judgment of the Hon'ble Supreme Court and is entirely unsustainable. According to the learned counsel for the petitioner-Hemant Kumar, it was not the question before the Central Registrar as to whether UPPCB was a Multi-State Co-operative Society or not because the Supreme Court had already held that UPPCB was indeed a 'Multi-State Co-operative Society'; and the only issue before the Central Registrar was of implementation of the order of the Hon'ble Supreme Court. The learned counsel further submitted that the considerations as adopted by the Central Registrar are not germane to the basic controversy because any change in bye-laws would not alter the status of the Society that became a Multi-State Co-operative immediately upon bifurcation of the State with its area of operation as also membership covering more than one State. It is submitted that by mere amendment of bye-laws, the Society cannot convert itself into a State Society because the deeming provision is rather of an irreversible process, as precisely held by the Hon'ble Supreme Court. The learned Counsel has also referred to the provisions of Section 22 of the Act of 2002 and submitted that only the conversion of a State Co-operative into a Multi-State Co-operative is permissible but not vice versa; and that any proposition for reversion, if at all, could have been taken up only by way of necessary steps envisaged by Sections 11 and 12 of the Act of 2002. Such steps having not been taken, according to learned counsel, there was no occasion for the Central Registrar to hold that the Society in question is a State Society to be governed by the U.P. Act of 1965. The learned counsel has particularly referred to the pleadings in paragraph - 55 of the writ petition that even the persons working in the State of Uttarakhand, after bifurcation, continued to be the members of the Society, and submitted that those facts have not been disputed in the counter; and existing such facts, mere alleged restriction of area of operation was of no effect because with members in more than one State, the Society had indeed became Multi-State Co-operative Society on the date of bifurcation of the State of U.P.
The respondents of this writ petition have essentially justified the order passed by the Central Registrar with reference to the reasons stated therein. Thus, according to the respondents, the Central Registrar has rightly rejected the representations made by the petitioner-Hemant Kumar. It has been additionally submitted that UPPCB is a primary cooperative Bank under the provisions of Banking Regulation Act, 1949 and for having not been registered by the Central Registrar as a Multi-State Cooperative Society, it can not function as a Bank under the license issued by the Reserve Bank of India. With reference to proviso to Section 22 (2) (b) of the Act of 2002, it has also been submitted that there is a prohibition against deemed conversion of society into Multi-State Cooperative Society unless registered as such. It has been re-emphasized on behalf of the Society that its area of operation had been U.P. Postal Circle only even before bifurcation of the State and remained so even after 09.11.2000 except for a short duration from 09.11.2000 to 12.01.2001 i.e., until creation of Uttaranchal Postal Circle. According to the respondents, the Society never discharged its functions under the Act of 1984 or the Act of 2002; and all the steps in its relation were taken under and in accordance of U.P. Act of 1965. The main-plank of the submissions on behalf of the Society is that after rejection of the stay applications in special leave petitions by the Hon'ble Supreme Court, the Society continued to discharge its functions under the U.P. Act of 1965 in conformity with what was held by the Court in the judgment on 10.11.2004 and it had never functioned under the Act of 1984 or under the Act of 2002; and that all the actions taken by the Society before the delivery of judgment by the Hon'ble Supreme Court on 20.10.2009 cannot be deemed to be nullified. Reference has again been made to the observations of the Hon'ble Supreme Court whereby option was left open for the Society to agitate the issue as regards the changes in bye laws in accordance with laws.
Having given thoughtful consideration to the rival submissions and having examined the record, we have formed the opinion that several relevant aspects of the matter having not gone into consideration of the Central Registrar; the order impugned cannot be sustained and it appears to be in the fitness of things necessary that while setting aside the order impugned, the matter be restored to the file of Central Registrar for reconsideration in accordance with law.
The learned Central Registrar has referred to the so-called developments that had taken place from the date of bifurcation of the State of U.P. into two States including the creation of separate Uttaranchal Postal Circle; the aforesaid order dated 10.11.2004 whereby, this Court held that the Society would be governed by the provisions of the U.P. Act of 1965; the Committee of Management of the Society having been functioning in accordance with the provisions of U.P. Act of 1965; the bye-laws of the Society having been amended whereby, the area of operation of the Society was limited to U.P. Postal Circle; formation of a new Society in the State of Uttarakhand with shifting of branches of UPPCB from Nainital and Dehradun to the State of U.P.; and none of the members from Uttaranchal Postal Circle having objections against UPPCB working under the U.P. Act of 1965.
However, the learned Central Registrar, even while indicating such factors and then observing that the Society had been functioning under the Act of 1965, did not return a categorical finding that the Society was not to be governed by the Act of 2002 and never attained the status of a Multi-State Co-operative Society. In fact, even while taking such factors into account and indicating that area of operation of the Society was U.P. Postal Circle only, the learned Central Registrar had not even considered the law declared by the Hon'ble Supreme Court in Naresh Shanker Srivastava (supra) that the deemed conversion of a Co-operative Society into a Multi-State Co-operative Society by the virtue of Section 95 of the Act of 1984 was an irreversible process and that there was no provision in the Multi-State Co-operative Societies Act, 2002, which permits automatic conversion of a Multi-State Co-operative into a State Co-operative. The learned Central Registrar has also omitted to consider as to whether the alleged change of bye-laws by the Society could be considered to have come into force in accordance with law. The submissions on behalf of the petitioner-Hemant Kumar in this regard that such process of amendment of bye-laws is required to be in conformity with Sections 11 and 12 of the Act of 2002 [Sections 9 and 10 of the Act of 1984] have a material bearing and without a specific finding that the amendment of bye-laws had in fact come into force, other conclusions of the Central Registrar do not appear carrying the requisite legal basis.
In the given set of circumstances, we are clearly of the view that the order passed by the Central Registrar cannot be sustained for the learned Central Registrar having omitted to take into consideration the relevant findings of the Supreme Court as also the law applicable to the case and further for the learned Central Registrar having not returned a categorical finding on the status of the Society. Having regard to the issues involved, it appears just and proper that the matter be restored to the file of Central Registrar for decision afresh and in accordance with law.
Intra-Court Appeals Having dealt with the issues involved in the writ petition, we may now take-up the intra-Court appeals, which involve the same basic question about the status of UPPCB.
As noticed, U.P. Postal Primary Cooperative Bank Limited has filed five special appeals, four of which [Nos.257, 258, 259 and 260 of 2010], are against the common order dated 11.02.2010 passed by the learned Single Judge in four writ petitions [Nos.1719 (S/S), 1720 (S/S), 1733 (S/S), and 1850 (S/S) of 2008] and Special Appeal No.270 of 2010 is against the order dated 22.3.2010 as passed by the learned Single Judge in Writ Petition No.7739 (S/S) of 2009 which was allowed in terms of the aforesaid order dated 11.02.2010. The State Government/Joint Registrar have filed other four appeals [Nos.263, 264, 271 and 272 of 2010] against the same common order dated 11.02.2010.
As noticed, the aforesaid writ petitions were filed by the employees of the Society against the order dated 25.01.2008 whereby they were ordered to be removed from service and the consequential orders dated 29.02.2008 of removal. The learned Single Judge allowed the writ petitions, essentially with the finding that the opposite parties in the writ petitions, being the authorities under the U.P. Act of 1965, were not authorised to deal with the matter relating to the service of the writ petitioners because the employer, the Society, was a Multi-State Cooperative Society and was not governed by the U.P. Act of 1965.
Assailing the order so passed by the learned Single Judge, several contentions have been urged on behalf of the appellants including the principal one that the Central Registrar had passed the order on 22.01.2010 before passing the order dated 11.02.2010 by the learned Single Judge; and though the arguments were concluded and the orders were reserved in the writ petitions in the month of December, 2009 but, by way of Application No.13392 of 2010 in Writ Petition No.1733 (S/S) of 2008, the said order of the Central Registrar was indeed placed before the Court with the prayer for re-hearing but this application was not considered by the learned Single Judge at all. It has also been contended on behalf of the appellants that irrespective of the Central Registrar's order dated 22.01.2010, the orders passed by the Society in terminating the services of these writ-petitioners (dated 29.02.2008) and the order passed by the Deputy Registrar, Cooperative Societies, U.P. (dated 25.01.2008) were saved under 'de facto doctrine' because after the order of this Court dated 10.11.2004 holding that the Society would be governed by the provisions of the U.P. Act of 1965, the stay applications in the Petitions for Special Leave to Appeal were rejected by the Hon'ble Supreme Court on 06.12.2004 and 05.01.2005. Thus, according to the appellants, on the date of passing of the orders impugned, (i.e. the orders dated 25.01.2008 and 29.02.2008), the authorities and the Society were well within their competence and authority to do so. It has also been contended that the appointment of the writ petitioners being illegal from the inception and being in violation of the applicable Regulations, such an illegality cannot be restored and perpetuated.
For what has been discussed in detail hereinbefore, as the matter before the Central Registrar is proposed to be restored for reconsideration, and the ultimate decision by the Central Registrar shall have bearing on the basic questions involved, we do not propose to deal with the other contentions urged on behalf of the appellants which have only been noted and are left at that. These appeals, in our view, deserve to be allowed on the short points that an order having direct bearing on the basic issue involved indeed escaped attention of the learned Single Judge; and that a fresh order would now be passed by the Central Registrar pursuant to the directions herein.
It is noticed that four writ petitions decided by the common order dated 11.02.2010 were heard by the learned Single Judge on 02.12.2009 and the order was reserved. At that stage of hearing, of course, the decision of Hon'ble Supreme Court in Civil Appeal No.290 of 2005 as rendered on 20.10.2009 was available which was essentially delivered following the lead judgment in the case of Naresh Shanker Srivastava Vs. State of U.P. & Ors. (AIR 2009 SC 2450) and thereby, the conclusion of the Hon'ble Supreme Court was clearly available on record that the Society in question became a Multi-State Cooperative Society by virtue of deeming provisions of Section 95 of the Act of 1984. However, as noticed, there had been subsequent events which ultimately culminated into the order of the Central Registrar dated 22.01.2010 wherein, the Central Registrar held that UPPCB was functioning under the U.P. Act of 1965 (and not the Multi-State Cooperative Societies Act, 2002). Of course, we are not approving this order of the Central Registrar and the matter is being restored to the file of the Central Registrar but, for the purpose of the present appeals, the contention of the appellants cannot be ignored that the said order of Central Registrar, when placed on record before passing of the final order, required consideration by the learned Single Judge.
In Special Appeal No.263 of 2010, a copy of the Application (CMA No.13392 of 2010) moved in Writ Petition No.1733 (S/S) of 2008 has been placed on record as Annexure-19 and it appears that this application was moved on 07.02.2010. Of course, ordinarily, when a matter is heard and order is reserved, supplementing of submissions is not permitted by the Court but, if there is any such subsequent event after hearing and before delivery of order which has a direct bearing on the core of the matter, the same may be taken into consideration in the interest of justice and for just and effectual determination of the questions involved. In the present case, the Central Registrar passed the order on 22.01.2010 and made observations on the status of the Society in question squarely contrary to what was proposed on behalf of the writ petitioners. This order of the Central Registrar was rendered in the proceedings which were permitted, rather envisaged, by this Court as per the orders passed in Writ Petition No.10257 (M/B) of 2009; and was of direct relevance and significance. We are not commenting as to what finding would have been returned by the learned Single Judge after considering the said order of the Central Registrar but the same having come into the existence before the decision of the writ petitions and having been placed on record, in our view, called for attention of the learned Single Judge; and the same having not been considered, the orders impugned cannot be sustained.
We may hasten to observe that if at all the said order dated 22.01.2010 passed by the Central Registrar was approved by this Court, the matter involved in these appeals as arising from the writ petitions could have been taken up for merit decision by us but when the Central Registrar would now be required to take a decision afresh, and the appellants have several other points to urge including saving of the orders impugned (dated 25.01.2008 and 29.02.2008) on 'de facto doctrine', in our view, interest of justice shall be served by setting aside the orders passed in writ petitions and remanding the matters involved in the writ petitions for decision afresh by the learned Single Judge in accordance with law.
In view of the position of the parties and respective interests, we also consider it proper to observe that although the employees, who were the petitioners in the writ petitions leading to these appeals, were not the applicants before the Central Registrar, but their direct interest being involved, it would be in the fitness of things if they are also extended an opportunity to make submissions before the Central Registrar for consideration. However, for this purpose, no separate notice shall be required to be issued by the Central Registrar and such writ petitions [respondents in the intra-Court appeals] shall be expected to appear before the Central Registrar on the first date of hearing, as being fixed hereunder.
Conclusions Accordingly and in view of the above:
1. Writ Petition No.2969 (M/B) of 2010 is dismissed as infructuous;
2. Writ Petition No.339 (M/B) of 2010 is dismissed;
3. Writ Petition No.1892 (M/B) of 2010 is allowed to the extent and in the manner that the impugned order dated 22.01.2010 is set aside and the matter stands restored for reconsideration by the Central Registrar in accordance with law. All the parties in this batch of cases shall stand at notice through their respective counsel to appear before the Central Registrar on 08.03.2016 who shall be expected to take a final decision in the matter at the earliest, preferably within 30 days from the date of first appearance of the parties.
4. All the Special Appeals in this batch of cases are allowed only to the extent that the impugned orders dated 11.02.2010 and 22.03.2010 are set side and the respective writ petitions are restored for reconsideration by the learned Single Judge. The parties to the related writ petitions shall also stand at notice through their respective counsel to appear before the learned Single Judge in the first place on 18.04.2016.
5. There shall be no order as to costs of these petitions and appeals.