Pathak, C.J. -
(1.) BY this application under Article 226 of the Constitution of India the petitioner has challenged the vires of Rule 20(1) of the Assam Co -operative Societies Rules, 1953, hereinafter referred to as 'the Rules', and also has prayed for quashing the orders dated 20 -8 -1970 and 29 -5 -1971 passed by the Assistant Registrar of Co -operative Societies and the order dated 4 -7 -1972 passed by the Joint Secretary, Government of Assam, Co -operative Societies Department, and also for a direction to Respondents 5 and 6 to admit the petitioner as a shareholder in the Assam Co -operative Silk House Ltd.
(2.) THE facts of the case are as follows: Respondent No. 6, Assam Co -operative Silk House Ltd, is a co -operative Society constituted under the Assam Co -operative Societies Act, 1949, hereinafter referred to as 'the society'. One Kaliram Karikar was a member of the society holding ten shares valued at Rs. 100/ - each during his lifetime and he was a share -holder of the society till his death. The society was registered in the year 1941 under the provisions of the Societies Act. It is stated in the petition by the petitioner that said Kaliram Karikar during his lifetime nominated his two sons, namely, Karuna Kanta Karikar (the petitioner) and Govinda Karikar who predeceased his father. The petitioner is the only surviving son on the death of his father Kaliram Karikar. After his father's death, the petitioner filed an application on 31 -10 -1968 to the society for transferring the shares of his father in his name. The Secretary of the society, Respondent No. 5, by letter dated 17 -4 -1969 informed the petitioner as follows: -
With reference to your letter dated 19 -1 -1969 regarding shares, I beg to state that if he becomes a member of the society, he should be connected in production and in other things.
We are not inclined to transfer the shares of the deceased. Therefore, it will be considered only after you apply afresh. Further, we are calling forth a report from the local Branch at Soalkuchi to examine as to how he is presently connected with the development of silk industries.
Against this decision communicated by the Respondent No. 5, the petitioner filed an application under Section 63(1) of the Societies Act to the Registrar of Co -operative Societies. The Assistant Registrar, Co -operative Societies, informed the petitioner that he was not entitled to the shares of his deceased father according to the bye law of the society and directed him to approach the Secretary of the Society, Respondent No. 5 for consideration of his case on merits. Thereafter the petitioner filed an application for review of the said order and that application was rejected. The petitioner then filed an appeal before the Minister of Co -Operative Societies under sub -section (3) of Section 80 of the Assam Co -operative Societies Act, 1949, hereinafter referred to as 'the Act'. With reference to his appeal, the petitioner was sent a copy of order No. Coop. 383/71/16 dated 4 -7 -1972, issued under the signature of the Joint Secretary to the Government of Assam, Co -operation Department by which the Secretary of the society was informed that since the Managing Committee did not want to admit the petitioner as a member, the society should pay the share money of late Kaliram Karikar to his rightful nominee without delay and the Secretary also should ascertain whether Karuna Kanta Karikar was the legal nominee or not before the payment was made. From Annexure 'X' to the application filed on 14 -5 -1975, it appears that with reference to letter dated 4 -7 -1972 the Registrar was informed that share money of Rs. 250/ - only was refinded to the rightful nominee of late Kaliram Karikar, that is, to Karuna Kanta Karikar, on 13 -4 -1969 as per Resolution No. 7 of the Managing Committee meeting held on 6 -4 -1969. The said sum was credited to the personal account of Karuna Kanta Karikar on 13 -4 -1969 and a copy of that letter, which was sent to the Registrar of Co -operative Societies, was also sent to the petitioner with a request to take the deposited amount with interest thereon at any moment or any day he liked. The present Rule has been obtained by the petitioner thereafter.
Mr. B.K. Das, the learned counsel for the petitioner, submits that since late Kaliram Karikar, who was a share -holder of the society, during his lifetime nominated his two sons, namely the petitioner and Govinda Karikar and since Govinda Karikar had predeceased his father, the petitioner was the only nominee and therefore, under Sections 23 and 24 of the Act the petitioner has a right to be admitted as a member of the society and the Respondents 5 and 6 have a duty to admit the petitioner as a member in place of his father.
(3.) SECTIONS 23 and 24 of the Act may be quoted.
23. Nomination of transferee. - If the bye -laws of a registered society so permit any member of the society may, in accordance therewith nominate a person or persons in whose favour the society shall dispose of the shares or interest of such member on his death.
24. Transfer of interest of dead member, - When a member of a registered society dies his shares and interest in the society shall, subject to the provisions of this Act, be transferred -
(a) to the person, if any nominated in accordance with the provision of Section 23. or
(b) if there be no such nominee or if the nominee is not available or is difficult to be ascertained by the managing body, or if for any other cause such transfer cannot be made without unreasonable delay or difficulty, to the person as may appear to the managing "body to be the heir or legal representative of the deceased -member; provided that ninety days have elapsed from the date of the member's death. No new claim shall be entertained after the said period of ninety days.;