2014 (4) TMI 1210 - HC - Indian Laws

Validity of Section 28-A(4) of the Karnataka Cooperative Societies Act 1959 as substituted by the amended Act dated 11.02.2013 - retrospectivity or prospectivity - Held that - having regard to the language employed in the Amending Act No. 3 of 2013 and the Act of 2011 (97th Amendment to the Constitution) we are satisfied that by necessary implication/intendment the amended provision would operate retrospectively and as a result thereof term of all the boards shall stand extended till expiry of the period of five years from the date of their election. Sub-section (4) of Section 28-A of the Act has retrospective operation. The members of the existing boards shall continue to hold office till expiry of the period of five years from the date of their election and no administrator can be appointed till then. The order of the learned single Judge dated 6th March 2014 disposing of the writ petitions from which these appeals arise is set-aside. The elected boards of the societies shall continue to hold office till expiry of the period of five years from the date of their elections and till then no administrator shall be appointed and the elected board shall take charge only on expiry of the term of office of the members of the board. In view thereof the communication dated 29.01.2014 impugned in the writ petitions is rendered ineffective. The writ appeals are accordingly disposed of in terms of the opinion expressed by us in this judgment.

Issues Involved:
1. Whether Section 28-A(4) of the Karnataka Cooperative Societies Act, 1959, as substituted by the amended Act dated 11.02.2013, is prospective or retrospective in nature.
2. Whether an Administrator can be appointed automatically under Section 28-A(5) of the Act if the Election Commission fails to conduct the elections within the stipulated time.
3. Whether Section 28-A(4) is ultra vires.

Detailed Analysis:

Issue 1: Retrospective or Prospective Nature of Section 28-A(4)
The primary issue was whether the amended Section 28-A(4) of the Karnataka Cooperative Societies Act, 1959, which changed the term of office from "five co-operative years" to "five years from the date of election," should be applied retrospectively. The court noted that the amendment by substitution generally implies that the new provision replaces the old one from the inception. The judgment referenced several Supreme Court decisions, including Zile Singh v. State of Haryana and others, which clarified that substitution typically has a retrospective effect unless expressly stated otherwise. The court concluded that the amended Section 28-A(4) should be applied retrospectively, meaning the term of the current boards would be extended to five years from their election date.

Issue 2: Appointment of Administrator under Section 28-A(5)
The second issue was whether an Administrator could be automatically appointed under Section 28-A(5) if the Election Commission failed to conduct elections within the stipulated time. The court observed that the intention of the legislature was to ensure that cooperative societies are managed by elected representatives. The provision for appointing an Administrator was intended as a last resort if elections could not be conducted within the specified timeframe. Given that the Election Commission had already started preparations for the elections, the court deemed it unnecessary to address this issue in detail. The court emphasized that the existing boards would continue to hold office until the elections were conducted and the new boards assumed office.

Issue 3: Ultra Vires Nature of Section 28-A(4)
The third issue, regarding the validity of Section 28-A(4), was not considered by the court as none of the appellants or petitioners had challenged the validity of this provision. Therefore, the court did not provide an opinion on this matter.

Conclusion:
1. Section 28-A(4) of the Act has retrospective operation.
2. The members of the existing boards shall continue to hold office until the expiry of five years from the date of their election, and no Administrator can be appointed until then.

The court set aside the order of the learned single Judge dated 6th March 2014, and directed that the elected boards of the societies continue to hold office until the end of their five-year term from the date of election. The communication dated 29.01.2014, which suggested appointing an Administrator, was rendered ineffective.

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