9911796707
TMI Blog1985 (4) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... ha , Arun Madan , Sarwa Mitter , Manoj Swarup and Miss Lalita Kohli , for the appearing Appellants. M.S. Gujral , S.K. Bagga , Swaraj Kaushal , R.S. Sodhi and M.P. Jha , for the appearing Respondents. CHINNAPPA REDDY , The opinion of the High Courts appears to be unanimous on the question of the validity of the relevant provisions of the Cooperative Societies Acts in force in their respective States providing for the compulsory amalgamation of Cooperative Societies. The Full Benches of the High Courts of Andhra Pradesh , Karnataka , Punjab and Haryana and a Division Bench of the Patna High Court ( AIR 1978 AP 121 (FB) AIR 1978 KARNATAKA 148 (FB) 1976 Punjab Law Journal 302 (FB) AIR 1968 PATNA 211) have upheld the validity of such provisions. But litigants , particularly those who are in a position to command funds arc rarely deterred by such unanimity of judicial opinion. 11 So , several Co-operative Societies of Punjab have chosen to prefer appeals to this Court questioning the vires of sec. 13 (8) of the Punjab Cooperative Societies Act which provides for the compulsory amalgamation of cooperative societies if it is necessary in the interests of the cooperative soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es , etc. were found to be of a dilatory and complicated nature , and , therefore , creating problems in the day to day working of the co-operative societies. Special care has , therefore , been taken. to cut out all unnecessary delays particularly in registration of societies and the provisions to this effect have been simplified. Another approach influencing a change is to make the Co- operative Law comprehensive. Moreover consistent with our national policy to promote the organisation and growth of the co-operative Societies in the various fields of economic activity , more difficult and complicated forms of co operative societies are to spring up as compared to Co- operative Credit Societies.. Section 2(c) defines co-operative society as meaning a Society registered or deemed to be registered under this Act. Chapter II (secs. 3 to 14) deals with registration of co-operative societies. In particular sec. 8 prescribes the conditions pre-requisite to registration and authorises the Registrar to register a society and its Bye laws if he is satisfied that the conditions are fulfilled , Section 13 provides for the amalgamation , transfer of assets and liabilities and division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has been sent under certificate of posting to the society or societies concerned and the creditors; (b) the Registrar has considered the objections received from the society or societies concerned or from any member or creditor of such society or societies within such period , being not less than fifteen days from the date of posting of the proposed order , as may be specified by the Registrar in this behalf in the pro posed order. (10) the Registrar may , after considering the objections referred to in sub-section (9) , make such modification in the proposed order as he may deem fit and the order may contain such incidental , consequential and supplemental provisions as the Registrar may deem necessary to give effect to the same. (11) A member or creditor who had objected to the pro posed order under sub-section (9) shall have the option of withdrawing his share , deposits or loans as the case may be , on an application which shall be made to the society to which his share , deposit or loan stands allocated by virtue of the order under sub-section(8) , within a period of thirty days of the date of such order (12) ....... Chapter V of the Act deals with privileges of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le and was never intended to be made available to co-operative societies , since the expression 'corporations' did not comprehend co-operative societies in its expanse. We are unable to find any justification for giving such a limited or narrow interpretation to the expression 'corporations' occurring in Art. 31-A(I) (c). On the other hand , we think that the very requirement of public interest or proper management of the corporation mentioned in Art. 31-A(l) (c) requires the expression to be given a broad interpretation since there can be no higher interest than the public interest. We do not however desire to quibble with rules of construction since we propose to examine what a 'corporation' means and comprehends ordinarily and in the scheme of the Constitution. What is a corporation ? In Halsbury's Laws of England , 4th Edition , Volume 9 , Paragraph 1201 , it is said , A corporation may be defined as a body of persons (in the case of a corporation aggregate) or in office (in the case of a corporation sole) which is recognised by the law as having a personality which is distinct from the separate personalities of the members of the body or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is essential to a corporation , that a corporation aggregate can , as a general rule , only act or express its will by deed under its common seal; that at the present day in England a corporation is created by one or other of two methods , namely , by Royal Charter of incorporation from the Crown or by the authority of Parliament that is to say , by or by virtue of statute. There is authority of long standing for saying that the essence of a corporation consists in (1) lawful authority of incorporation, (2) the persons to be incorporated, (3) a name by which the persons are incorporated , (4) a place and (5) words sufficient in law to show incorporation. No particular words are necessary for the creation of a corporation : any expression showing an intention to incorporate will be sufficient. The court then noticed the various provisions of the Societies Registration Act , 1860 which according to them contained no sufficient words to indicate an intention to incorporate but on the contrary contained provisions showing that there was an absence of such intention. Therefore , they observed , We have , therefore , come to the conclusion that the provisions aforesaid do not es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r hand one would think that the very mention of co-operative societies both in Entry 43 of List I and Entry 32 of List II along with other corporations give an indication that the Constitution makers were of the view that co-operative societies were of the same genus as other corporations and all were corporations. In fact the very express exclusion of co-operative societies from Entry 43 of List I is indicative of the view that but for such exclusion , co-operative societies would be comprehended within the meaning of expression corporations . The statement of Objects and Reasons of the Constitution (4th amendment) Act and the report of the Joint Select Committee relating thereto do not carry Mr. Ramamurthi's argument any further. The statement of Objects and Reasons says , in relation to Art. 31-A (1) (c) , The reforms in company law now under contemplation like the progressive elimination of the managing agency system , provision for the compulsory amalgamation of two or more companies in the national interest , the transfer of an undertaking from one company to another , etc. , require to be placed above challenge. The report of the Joint Select Committee , is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the court as contravening the fundamental right guaranteed by Art. l9(1)(f). In the cases before us we are concerned with co-operative societies which from the inception are governed by statute. They are created by statute , there are controlled by statute and so , there can be no objection to statutory interference with their composition on the ground of contravention of the individual right of freedom of association. The second submission of the learned counsel was that s.13(8) of the Punjab Co-operative Societies Act provided for amalgamation of Co-operative Societies if the Registrar was satisfied that it was necessary to do so in the interest of the Co-operative Societies whereas the Constitutional protection was available only if the legislation was in the public interest or in order to secure the proper management of any of the corporations. According to the learned counsel the protection of Art. 31-A (1) (c) was, therefore, not available to s. 13 (8) of the Punjab Cooperative Societies Act as the interest of a Cooperative Society may not necessarily be in the public interest or for the proper management of the society. This submission is no more than a play with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel was that the notification authorising the Assistant. Registrar of Co- operative Societies to exercise all the powers of Registrar under the Act could enable the Assistant Registrar to perform only such functions as the Registrar was authorised to perform under the Act as on the date of the notification. The Assistant Registrar would not be entitled to exercise the powers entrusted to the Registrar by amendment of the Act subsequent to the date of the notification unless a fresh notification was issued. We do not think that a fresh notification would be necessary where the Assistant Registrar even initially was authorised generally to perform all the functions of a Registrar.A fresh notification would probably be necessary where the Assistant Registrar was authorised to perform certain specified functions only of the Registrar. That is not claimed to be the situation here. The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and me ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
