R.S. Narula, J. - (1.) THE only point that calls for decision in this petition under Articles 226 and 227 of the Constitution is whether bye -laws 30(i) and 30(iv) of the Bye -laws of the Gharaunda Co -operative Marketing -cum -Processing Society Limited, which are quoted below, are ultra vires Section 26(1) of the Punjab Co -operative Societies Act, 1961 (hereinafter called the Act), or not: 30. The Managing Committee of the society shall be constituted in the following manner: (i) Assistant Registrar ex -officio. (ii)... (iii)... (iv) Not more than two committee members to be co -opted by the Managing Committee. While co -opting such members, the Managing Committee may provide representation to agriculture or marketing experts. (v)... Sub -section (1) of Section 26 and Clause (a) of Sub -section (2) of that section of the Act provide as follows: 26. (1) The members of the committee of a co -operative society shall be elected in the manner prescribed and no person shall be so elected unless he is a shareholder of the society. (2) Notwithstanding anything contained in Sub -section (1): (a) where the Government has subscribed to the share capital of a co -operative society, the Government or any person authorised by it in this behalf shall have the right to nominate on the committee such number of persons not exceeding three or one -third of the total number of members thereof, whichever is less, as the Government may determine ; * * * * The contents of rest of Section 26 are neither material nor relevant for deciding the precise issue which has arisen before me in the circumstances mentioned below. The main argument of Mr. Kuldip Singh, learned Counsel for Chaudhry Charan Singh Petitioner, is that the above -said provisions in bye -law 30 of the Bye -laws of the Society are violative of the mandatory requirements of Sub -section (1) of Section 26 of the Act inasmuch as they provide for - - (i) the Assistant Registrar becoming an ex -officio member of the Managing Committee without being elected to that office and without being a share -holder of the Society; and (ii) two members to be co -opted by the Managing Committee contrary to the requirements of Section 26(1) read with Section 24 of the Act about election of the members of the Committee of management (other than nominated members) being held only in a general meeting of the Society. The facts leading to the filing of this petition may now be noticed in brief.
(2.) RESPONDENT 4 is a society registered under the Act. In this judgment, I am referring to it as the Society. The constitution of its committee of management is provided in bye -law 30, the impugned part of which has already been quoted in the first paragraph of this judgment. When a meeting of all the other members of the committee of management of the Society had been fixed for co -opting two members on it, written objections were raised by the Petitioner on April 4, 1969, to the intended co -option proceedings. Nothwith -standing the objections, the meeting was held on April 7, 1969, and Respite certain objections against their co -option, Respondents 5 and 6 (Munna Singh and Jail Paul) were elected by the managing committee for being co -opted on it, - -vide paragraph 4 of the proceedings of the meeting of the managing committee, of which a copy is annexure 'A' to the writ petition. The Petitioner claims to have approached the Registrar, Co -operative Societies, Haryana, to 'delete the impugned by -laws on the ground that similar bye -laws providing for the Assistant Registrar being an ex -officio member and providing for co -option of certain members had been held to be inconsistent with the provisions of the Act by the Punjab Government and had been rescinded by that Government in the State of Punjab by the letter of the Registrar, Co -operative Societies, Punjab, dated February 21, 1969 (annexure 'B'). The Haryana authorities did not, however, agree to the said representation made by the Petitioner. This petition was then filed on April 17, 1969, for declaring bye -laws 30(i) and 30(iv) of the Society as ultra vires that Act and for consequently setting aside the resolution, annexure 'A' (co -opting Respondents 5 and 6) and also for annulling the nomination of the Assistant Registrar, Co -operative Societies, as an ex -officio member of the committee. Respondents 1 to 3, who are the State of Haryana, the Registrar, Co -operative Societies, Haryana, and the Assistant Registrar, Co -operative Societies, Haryana, have filed the affidavit of Shri Sunehri Lal, Assistant Registrar, by way of a return to the rule issued to them. It has been denied that the impugned bye -laws are violative of the requirements of Section 26(1) of the Act. It has been stated that the Punjab Government was not ' sure of the correct position and had, therefore, issued the communication, 'annexure 'B', rescinding similar bye -laws; but the correct position is that members have to be appointed on the committee by election "in the manner prescribed" and inasmuch as the manner prescribed under the rules read with the bye -laws provides for the co -opted members being elected by the committee and not by the general body; there is nothing wrong with the election of Respondents 5 and 6.
(3.) IN order to appreciate the rival contentions of the learned Counsel for the parties, it appears to be necessary to notice some of the provisions of the Act and of the Punjab Co -operative Societies Rules, 1963, hereinafter called the 1963 Rules, and a few bye -laws of the Society. 'Committee' is defined in Clause (b) of Section 2 of the Act to mean 'the governing body of a co -operative society, by whatever name called; to which the management of the affairs of the society, is entrusted'. The provisions for the management of the cooperative societies are contained in Chapter IV of the Act which, starts, with, Section 23 and, ends with Section 29, The purview of Sub -sectional) of Section 23 states that the final authority in a co -operative .society shall vest in the general body of its members. The proviso to that sub -section provides for delegation of the authority of the society in accordance with its bye -Laws. Section 24 of the Act provides, inter alia: 24 A general meeting of a Co -operative society shall be held once in a year for the purpose of: * * * * (b) reflection, if any, of the members of the committee other than nominated members ; * * * * Section 25 relates to calling of special general meetings of the society. Relevant part of Section 26, with which we are directly concerned, has already been quoted. Section 85(1) authorises the State Government to make rules for any co -operative society or class of such societies for the purpose of carrying out the purposes of the Act. Sub -section (2) of that section gives a list of the matters for which provision may be made in the rules framed under Sub -section (1) without prejudice to the generality of the power conferred by that Sub -section. Clause (iv) of Sub -section (2) of Section 85 is in the following terms:" - - 85. (2) (iv) the matters in respect of which the society may or shall make bye -laws and for the procedure to be followed in making, altering and abrogating bye -laws and the conditions to be satisfied prior to such making, alteration or abrogation. Clause (x) then states - 85. (2) (x) subject to the provisions of Section 26, the election and nomination of members of committees, the appointment or election of officers and the suspension and removal of the members and other officers, and for the powers to be exercised and the duties to be performed by the committees and other officers. Sub -section (3) of Section 85 requires every rule made under Section 85 to be laid before each House of the State legislature while it is in session for a total period of ten days and further provides that the rules shall have effect only subject to such modifications, if any, which both Houses of the legislature may make. This provision places the rules framed under Section 85 of the Act at the same pedestal on which the legislative provisions of the Act themselves stand.;