LPA No. 1005 of 2011 in CWJC No. 12878 of 2003 in Civil Review No. 129 of 2010. Case: The Organizer, Dehri C.D. and C.M. Union Limited Vs The State of Bihar and Ors.. High Court of Patna (India)

Case NumberLPA No. 1005 of 2011 in CWJC No. 12878 of 2003 in Civil Review No. 129 of 2010
CounselFor Appellant: Bindhyachal Singh, Rameshwar Singh, Parijat Saurav, Ram Binod Singh, Niranjan Kumar, Vipin Kumar Singh, Sushil Kumar Singh, Rahul Raju and Ms. Smriti Singh, Advs. and For Respondents: Lalit Kishor, Piyush Lall, Vikash Kumar for the State, Sudama Singh, Rajani Kant Singh, Angad Kunwar, Rabindra Nath Singh for Respondents No. 6 and...
JudgesNavaniti Pd. Singh, Ramesh Kumar Datta, Samarendra Pratap Singh, Jyoti Saran and Ashwani Kumar Singh, JJ.
IssueBihar Shops and Establishments Act, 1953 - Section 26; Companies Act, 1956 - Section 617, Companies Act, 1956 - Section 619; Constitution of India - Articles 12, 13, 132, 14, 15, 16, 19, 21, 21A, 226, 226(1), 309, 310, 311, 32, 36
CitationAIR 2014 Pat 67, 2014 (1) PLJR 695
Judgement DateFebruary 07, 2014
CourtHigh Court of Patna (India)

Order:

Navaniti Pd. Singh, J.

1. A Division Bench of two Hon'ble Judges of this Court, presided by Hon'ble the Chief Justice, by order dated 6.8.2013, passed in this letters patent appeal, has referred the matter to this Special Bench consisting of five Hon'ble Judges, doubting the correctness of the Division Bench judgment in the case of Nand Kishore Rai vs. The State of Bihar & Ors., since reported in 1988 P.L.J.R. 1065 and the Full Bench judgment of three Hon'ble Judges of this Court in the case of Rajendra Prasad Sah vs. The State of Bihar & Ors., since reported in 2000 (4) P.L.J.R. 273, in respect of the issue whether a private Co-operative Society, duly registered under the provisions of the Bihar Co-operative Societies Act, 1935 (hereinafter referred to as 'the Co-operative Act' for brevity) not being a "State" by itself, within the meaning ascribed to it under Article 12 of the Constitution, would become a "State" if the elected Managing Committee thereof is taken over and replaced by an Administrator appointed by the Registrar, Co-operative Societies, Bihar as a short term arrangement and whether under those circumstances, writ petition is maintainable questioning the orders passed by the said Administrator. The two judgments referred to above, namely, Nand Kishore Rai (supra) and Rajendra Prasad Sah (supra), while dealing with the case of Bihar State Cooperative Marketing Union (BISCOMAUN), registered under the Co-operative Act, during the period of supersession, held that the writ petition challenging orders of the Administrator was maintainable.

2. In my view, in order to answer the reference, it would first be essential to decide the concept of 'State' as envisaged under Article 12 of the Constitution. The second legal issue, that is to be decided, would be the relative scope of "writ jurisdiction and/or the power to issue writs" as contemplated under Article 32 of the Constitution and Article 226 of the Constitution. As corollary to the second issue, it would be necessary to decide the distinction between the respective scope of Article 32 of the Constitution and Article 226 of the Constitution considering the scope of the concept of 'State' as envisaged under Article 12 of the Constitution.

3. Before proceeding further, I deem it necessary to notice salient facts of the case leading to the reference. The facts are not in dispute.

4. On 21.11.2003, the writ petition being C.W.J.C. No. 12878 of 2003 was filed by Nawal Kishore Singh and Sushil Kumar Sinha, who were employed as Assistant and Cashier-cum-Assistant Accountant, respectively, in the Dehri Cane Development and Cane Marketing Union Limited, a Co-operative Society, registered under the provisions of the Co-operative Act. They challenged the order dated 1.10.2003 passed by the Administrator (respondent No. 6), appointed under Section 41(5); of the Co-operative Act, by which they were dismissed from service. This order of dismissal was preceded by a notice dated 13.1.2003 as to why departmental proceeding be not initiated against them. They replied, Thereafter, neither charges were framed nor evidence were supplied and without holding a formal departmental proceeding, the Administrator passed the impugned order dismissing them from service. Under these circumstances and upon these findings of fact, the order of dismissal dated 1.10.2003 was quashed and the writ petition was allowed by the judgment and order dated 4.2.2010 by an Hon'ble Single Judge of this Court. Being aggrieved and dissatisfied with the judgment and order aforesaid, the Organizer of Dehri C.D. & C.M. Union Limited (respondent No. 7 in the writ petition) preferred an intra court appeal being L.P.A. No. 746 of 2010 on 21.4.2010.

5. A Division Bench, presided by Hon'ble the Chief Justice, by order dated 22.4.2010, permitted the said appeal to be withdrawn upon learned counsel for the appellant seeking leave of the Court to file a review application for review of the judgment and order dated 4.2.2010 passed in C.W.J.C. No. 12878 of 2003.

6. On 21.5.2010, Civil Review No. 129 of 2010 was filed for review of the judgment and order dated 4.2.2010 as passed by the Hon'ble Single Judge in C.W.J.C. No. 12878 of 2003. In this review application, the original writ petitioners were made opposite parties No. 8 and 9 and the review application was filed by the Organizer, Dehri C.D. & C.M. Union Limited, who, as noticed above, was respondent No. 7 in the writ petition. At the review stage on behalf of the review petitioner, an issue was raised that the writ petition was not maintainable as the Cooperative was a private Co-operative Society registered under the Co-operative Act and it was not 'State' under Article 12 of the Constitution of India. The Court, relying on decisions in the case of Nand Kishore Rai (supra) and Rajendra Prasad Sah (supra) held, inter alia, that as the order was passed by the Administrator, the writ petition was maintainable and, thus, the Court found no reason to interfere and review the judgment and order dated 4.2.2010 as passed in the writ petition and consequently the review application was dismissed by judgment and order dated 30.3.2011.

7. Thereafter, the Organizer, Dehri C.D. & C.M. Union Limited filed L.P.A. No. 1005 of 2011, the present intra court appeal. Initially, this appeal was filed against the order dated 30.3.2011 passed in Civil Review No. 129 of 2010, not interfering with judgment and order dated 4.2.2010 passed in C.W.J.C. No. 12878 of 2003, but later the memorandum of appeal was amended substantively challenging the judgment and order dated 4.2.2010 as passed in the writ petition. After condoning the delay in course of hearing at the stage of admission and after appearance of private respondents No. 6 and 7 who were the original writ petitioners, issue of maintainability of the writ petition being raised, that by order dated 6.8.2013 the matter has been referred to the Special Bench as noted above.

8. As before the Division Bench in appeal so before this Special Bench Shri Bindhyachal Singh, learned counsel for the appellant, would submit that the Co-operative in question was a private Co-operative exercising no public function even though ex-officio Chairman of the Managing Committee was the Sub-Divisional officer, Dehri, District-Rohtas. The rest of the members of the Managing Committee as constituted under Bye-law 31 were members to be elected at the Annual General Meeting from the delegates. The delegates were all private members. The said Cooperative was registered and its Bye-laws were framed and approved sometime in or about 1941. The membership consisted of Cane Growers Co-operative Society and Sugar Mills purchasing sugarcane, but apparently in due time sugar industry in the area became defunct. It had taken up the business of distribution of L.P.G. Gas as duly appointed dealer by Indian Oil Corporation Limited, a Government of India Undertaking. There were directions issued by the Registrar, Co-operative Societies, Bihar to the ex-officio Chairman of this Co-operative, who, as noted above, was the Sub-Divisional officer, to hold election, convene general body meeting and elect the Managing Committee, but it was not so done and, accordingly, the District Cooperative officer, Rohtas was appointed as Administrator to exercise the functions of the Committee of Management by Registrar, Co-operative Societies, Bihar under Section 41(5) of the Co-operative Act on or about 19.4.2001.

9. It would be the submission of Shri Bindhyachal Singh that the Administrator, so appointed in exercise of powers conferred on the Registrar, Co-operative Societies, Bihar under Section 41(5) of the Co-operative Act, was only discharging the functions of the Committee of Management and that too for a temporary period till an appropriate Committee was elected and constituted in accordance with Bye-laws of the Co-operative. Thus, since neither the Co-operative was carrying on any public function nor the Administrator exercising any public function, the Cooperative during the tenure of the Administrator would not be "State" within the meaning of Article 12 of the Constitution nor would the Administrator, thus, be amenable to writ jurisdiction of this Court under Article 226 of the Constitution and as such the writ petition was not maintainable and ought to have been dismissed in respect of challenge to the order of the Administrator. It is in these perspective, the question of law, as referred to the Special Bench arises.

10. We have heard Shri Bindhyachal Singh, learned counsel for the appellant and Shri Lalit Kishore, learned Senior Advocate-cum-Principal Additional Advocate General for the State, both of whom virtually took the same stand and the learned lawyer for private respondent Nos. 6 and 7 to the appeal, who were original writ petitioners, addressed the Court. Considering the importance of the issues involved, at the request of the Special Bench, Shri Abhay Kumar Singh, learned Senior Advocate assisted the Court as Amicus Curiae.

11. In fairness to learned Principal Additional Advocate General, I must notice the stand of the State in slightly more detailed manner. His submission would be that the Co-operative by itself being a private Co-operative cannot be 'State' within the meaning ascribed to it under Article 12 of the Constitution. Merely temporary appointment of Administrator will not change the nature of Co-operative and make it a 'State'. One has to look to the cumulative effect of various functions of the Co-operative and that of the Administrator to determine the nature. That being so, no plea of infringement of Part-III (Fundamental Rights) can be raised by the writ petitioners as against the Co-operative. The Administrator would not be exercising sovereign functions or governmental executive functions or legislative functions and he can also not be 'State' within the meaning of Article 12 of the...

To continue reading

Request your trial
3 practice notes
3 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT