w w w . L a w y e r S e r v i c e s . i n



All Orissa State Bank Officers Housing Co-Operative Society v/s State of Odisha & Others


Company & Directors' Information:- S V HOUSING PRIVATE LIMITED [Active] CIN = U70109DL2006PTC150816

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226DL1910PLC299886

Company & Directors' Information:- CO-OPERATIVE COMPANY LIMITED [Active] CIN = U51226UP1910PLC000093

Company & Directors' Information:- V G P HOUSING PRIVATE LIMITED [Active] CIN = U65922TN1972PTC006240

Company & Directors' Information:- B R HOUSING PVT LTD [Active] CIN = U45203WB1995PTC073083

Company & Directors' Information:- G K S HOUSING LIMITED [Amalgamated] CIN = U45201TN1996PLC036147

Company & Directors' Information:- R. J. HOUSING PRIVATE LIMITED [Active] CIN = U45400WB2007PTC114792

Company & Directors' Information:- INDIA HOUSING LIMITED [Active] CIN = U45200PN2008PLC131883

Company & Directors' Information:- R D HOUSING PVT LTD [Active] CIN = U70101WB1996PTC081099

Company & Directors' Information:- G C HOUSING PRIVATE LIMITED [Active] CIN = U45201DL2003PTC122011

Company & Directors' Information:- J. D. HOUSING PRIVATE LIMITED [Active] CIN = U45309PN2016PTC166622

Company & Directors' Information:- A N HOUSING PRIVATE LIMITED [Strike Off] CIN = U45400UP2008PTC035479

Company & Directors' Information:- D L HOUSING PRIVATE LIMITED [Active] CIN = U45400WB2009PTC135703

Company & Directors' Information:- G M K HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1995PTC069486

Company & Directors' Information:- R G HOUSING PRIVATE LIMITED [Active] CIN = U70102UP2012PTC052735

Company & Directors' Information:- B B HOUSING PRIVATE LIMITED [Strike Off] CIN = U70109WB1997PTC084775

Company & Directors' Information:- B S R HOUSING PRIVATE LIMITED [Strike Off] CIN = U70102AP2005PTC048146

Company & Directors' Information:- M. P. HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200UP2007PTC033329

Company & Directors' Information:- OPERATIVE INDIA PRIVATE LIMITED [Active] CIN = U74300KA2008FTC048079

Company & Directors' Information:- S K J HOUSING PRIVATE LIMITED [Active] CIN = U63023WB1999PTC089993

Company & Directors' Information:- S V R HOUSING INDIA PRIVATE LIMITED [Strike Off] CIN = U45200AP2009PTC064511

Company & Directors' Information:- R K HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC032252

Company & Directors' Information:- J HOUSING PRIVATE LTD [Active] CIN = U74899DL1980PTC010338

Company & Directors' Information:- K P A HOUSING PRIVATE LIMITED [Strike Off] CIN = U45201TN2005PTC055354

Company & Directors' Information:- V. D. P. HOUSING PRIVATE LIMITED [Active] CIN = U70102UP2012PTC054142

Company & Directors' Information:- G R E HOUSING PRIVATE LIMITED [Active] CIN = U70102AP2008PTC061004

Company & Directors' Information:- ORISSA CORPORATION PVT LTD [Dissolved] CIN = U15312OR1947PTC000123

Company & Directors' Information:- ORISSA BANK LIMITED [Dissolved] CIN = U65191OR1930PLC000008

Company & Directors' Information:- G M HOUSING PRIVATE LIMITED [Strike Off] CIN = U99999MH1994PTC076203

Company & Directors' Information:- K K HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200DL2012PTC232532

Company & Directors' Information:- V R HOUSING PRIVATE LIMITED [Strike Off] CIN = U45201AP1998PTC030550

Company & Directors' Information:- A. S. HOUSING PRIVATE LIMITED [Active] CIN = U45209PB2012PTC036226

Company & Directors' Information:- S. N. HOUSING PRIVATE LIMITED [Active] CIN = U45400MH2010PTC202407

Company & Directors' Information:- P & M HOUSING PRIVATE LIMITED [Active] CIN = U70102MH2012PTC229509

Company & Directors' Information:- D. H. HOUSING PRIVATE LIMITED [Active] CIN = U70102MH2012PTC237322

Company & Directors' Information:- N K HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200MH2003PTC139304

Company & Directors' Information:- C S R HOUSING PRIVATE LIMITED [Active] CIN = U45400TG2012PTC078681

Company & Directors' Information:- K-HOUSING PRIVATE LIMITED [Strike Off] CIN = U45200TN2009PTC070655

Company & Directors' Information:- L R HOUSING PRIVATE LIMITED [Active] CIN = U70100TG2013PTC089981

Company & Directors' Information:- K N S HOUSING PRIVATE LIMITED [Active] CIN = U45400DL2007PTC167504

Company & Directors' Information:- R C HOUSING PRIVATE LIMITED [Active] CIN = U74899DL1988PTC032258

Company & Directors' Information:- W B HOUSING COMPANY PRIVATE LIMITED [Strike Off] CIN = U70109DL2013PTC250413

Company & Directors' Information:- B G HOUSING PRIVATE LIMITED [Active] CIN = U70101DL2004PTC124095

Company & Directors' Information:- ORISSA HOUSING CO PVT LTD [Strike Off] CIN = U70101OR1981PTC001000

Company & Directors' Information:- A K Y HOUSING PRIVATE LIMITED [Strike Off] CIN = U45400TG2007PTC056210

Company & Directors' Information:- M K Y HOUSING PRIVATE LIMITED [Strike Off] CIN = U45400TG2008PTC059752

Company & Directors' Information:- G M R HOUSING PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102TG2002PTC038792

Company & Directors' Information:- SOCIETY BANK LIMITED [Dissolved] CIN = U65191KL1930PLC001021

Company & Directors' Information:- THE HOUSING CORPORATION LIMITED [Dissolved] CIN = U99999MH1946PLC010719

    Writ Petition (Civil) No. 13076, 19962 & 502 of 2018

    Decided On, 03 July 2020

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE P. PATNAIK

    For the Appearing Parties: Sangram Senapati, R.B. Mohapatra, N.N. Mohanty, S. Sen, Somya Sekhar Parida, Shakti Datta Tripathy, Ras Bihari Mahapatra, Advocates.



Judgment Text

1. Relief sought for in the aforesaid writ applications are more or less similar, with the consent of the respective parties all the writ petitions have been heard analogously and are being disposed of in this common order.2. In W.P.(C) No.13076 of 2017 the petitioner calls in question the order dated 18.04.2017 passed by the opposite party No.1 in Appeal No.01 of 2014 whereby and whereunder the appeal filed by the petitioner society has been dismissed confirming the action of opposite party no.2 in deleting/modifying/changing the clause of the Bye-law of the society. The petitioner has sought for issuance of a writ of certiorari for quashing the impugned order under Annexure-6 and order under annexure-8.The brief facts leading to filing of the writ petition are that the petitioner society was registered under the Odisha Co-operative Societies Act, 1962 with the avowed objective of providing pucca building and to provide loan to members for construction of houses as per the Bye-law of the petitioner society as evident from Annexure1. While the matter stood thus, another Act namely, Self Help Cooperative Societies Act, 2001 was enacted and the petitioner society was registered under the said Act vide registration no.35 dated 11.06.2010. In order to protect the interest of the members, those who are on the verge of retirement, a Resolution was passed by the Society by following due procedure as provided under section 7 of the Act 2001 for clarification/amendment of the Article of association by adding once admitted the membership will continue till death/withdrawal or cessation of the membership. The said Resolution was forwarded to the opposite party no.2 vide letter under Annexure-3. In the year 2013 the Self Help Co-operative Societies Act, 2001 was repealed with effect from 06.06.2013 vide Odisha Gazette Notification dated 01.10.2013. As per the deeming clause (repeal Act, 2013) the petitioner society automatically got registered under Odisha Cooperative Societies Act, 1962. After repeal of the said Act, 2001, the petitioner society took decision to amend the Bye-law and the petitioner society forwarded the proposed amendment to opposite party no.2 for registration vide letter dated 31.08.2013 as per Annexure-5 and the proposed amendment with all documents forwarded to opposite party no.2 was received by opposite party no.2 on 02.09.2013. In view of the provisions of Section 12(4-a) of O.C.S.Act, 1962 on expiry of 60 days from the date of application of registration of amendment in Bye-law, the amendment of the Bye-law of the petitioner society is deemed to have been registered with effect from 01.10.2013, but the opposite party no.2 by exceeding its jurisdiction made certain changes in the Bye-law after the cut-off date in deleting Clause-6 and modifying/changing clause 8(5) of the Bye-law of the petitioner society vide Registration dated 03.09.2014. Being aggrieved by the action of opposite party no.2, the petitioner society preferred an appeal before the State Government under section 109-(2-b) of O.C.S.Act, 1962 which was registered as Appeal No.01 of 2014 vide Annexure-7 and the said appeal has been dismissed vide impugned order dated 18.04.2017 under Annexure-8.In the aforesaid factual backdrop the instant writ petition has been filed by the petitioner society under Articles 226 and 227 of the Constitution of India for redresal of its grievance.3. In W.P.(C) No.19962 of 2017 the petitioner has challenged the order dated 16.08.2017 passed by the learned Cooperative Tribunal, opposite party No.1 in Misc.Case No.18 of 2016 arising out of Election Dispute Case No.17 of 2015 filed by opposite party no.4 in deciding the issue of maintainability. The petitioner sought for setting aside the impugned order dated 16.08.2018 under Annexure-16 passed by the learned Co-operative Tribunal to the extent of maintainability of election dispute and restraining the petitioner from taking policy decision involving the financial implication.The brief facts of the case are that the provisions of Clause-5 of the Bye-law speaks about members of Odisha State Bank Officers Housing Co-operative Societies Ltd. shall be deemed to be the members of the society registered under the Co-operative Societies Act, 1962. The Society issued election Notification dated 13.12.2014 for election of members to the committee of the management of the society. The petitioners being the members filed their nominations. Since there was no objection to the nomination, nor any election dispute, the petitioners were elected to different positions of the committee of the management of the society and the results were declared as per Annexure-7 series. The opposite party no.4-plaintiff never objected to the nomination of the petitioners. While the petitioners were continuing as office bearers of the society, the opposite party no.4-plaintiff filed election dispute dated 06.05.2015 before the Co-operative Tribunal challenging the election of the petitioners much after the period of limitation as provided under the Statute on the ground that the petitioners were not members after retirement from services. Copy of the election dispute and written statement filed by the petitioners are annexed as Annexures-9 and 10 to the writ petition. The learned Tribunal vide order dated 05.05.2016 restrained the petitioners from dealing with the day to day business of the society and directed not to participate in the decision in the matter of financial implication as per Annexure-14. Being aggrieved by the said order, the petitioners preferred W.P.(C) No.9872 of 2016 which was disposed of on 09.01.2019 by setting aside the order dated 05.05.2016 in remanding the matter back for hearing afresh as per Annexure-15. The learned Tribunal vide order dated 16.08.2017 though allowed the petitioners to deal with the day to day business of the society, but restrained them to take policy decision involving the financial implication till disposal of the election dispute as per Annexure-16.In the aforesaid backdrop, the impugned order dated 16.08.2017 under Annexure-16 is under challenge in the instant writ petition.4. In W.P.(C) No.502 of 2018 the petitioners, who are senior citizens and shareholder members of opposite party No.3 society have sought for quashing of the order dated 29.11.2017 passed by opposite party No.1 under Annexure-1 along with order dated 18.04.2017 passed by opposite party no.1 in Appeal No.01 of 2014 under Annexure-3.Bereft of unnecessary details, the facts as delineated in writ petition in nutshell are that the petitioners being directly affected by the order of opposite party no.1 dated 18.04.2017 passed in Appeal No.01 of 2017 the petitioners moved this Court in W.P.(C) No.9152 of 2017 which was disposed of on 19.07.2017 with a direction to the petitioners to file a review petition containing all the points raised before opposite party no.1 in deference to order dated 19.07.2017 passed in W.P.(C) No.9152 of 2017, but the opposite party No.1 dismissed the review vide order dated 19.11.2017 in Review No.01 of 2017 under Annexure-1. The petitioners being aggrieved by the order in Appeal No.01 of 2017 as well as the consequential review case No.01 of 2017 have been constrained to approach this Court under Articles 226 and 227 of the Constitution of India for redressal of their grievance.5. Controverting the averments made in the writ petition, a counter affidavit has been filed by opposite party no.2, wherein it has been submitted that on receipt of proposal for conversion of All Odisha State Bank Officers Housing Cooperative Society, registered under the OCS Act, 1962 to a Cooperative under Orissa Self Help Cooperatives Act, 2001 (repealed) vide its letter dated 21.07.2009 and letter dated 19.03.2010 the petitioner society was registered under Orissa Self Help cooperatives Act, 2001 (Repealed) vide Registration No.35 dated 11.05.2010. The proposal for amendments of Clause-7 of the Article of associations that once admitted, the membership will continue till death/withdrawal or cessation of membership, was submitted vide letter No.31 dated 16.05.2011 to the Registrar was not taken on record by the Registrar as per provisions of section 7(4) of the Orissa Self Help Cooperatives Act, 2001 ( since repealed ) as the said proposal was not in consonance with the provisions of section 7(1) and Section 2(40) of the Orissa Self Help Cooperatives Act, 2001 (Repealed) and the same was communicated to the Chief Executive of the petitioner society vide letter No.12910 dated 27.06.2011. As per the provision of section 7(4) of the Orissa Self Help Co-operatives Act, 2001 (Repealed), the petitioner society has been intimated the decision as per AnnexureA/2. Further, it has been submitted that as per the provisions of Clause-3 of the Orissa Self Help Cooperatives (Repeal) Act, 2013, the provisions which are inconsistent with the provisions of the Odisha Cooperative Societies Act, 1962 be amended in accordance with the provisions of that Act. Therefore, the provisions of Articles of association, which were existing prior to Orissa Self Help Cooperatives (Repeal) Act, 2013 and inconsistent to the OCS Act, 1962 are to be amended and accordingly the provisions of the Byelaws of the petitioner society was amended, which were inconsistent with the provisions of OCS Act, 1962. It has been further submitted that the proposal for amendment of continuance of membership after retirement was not taken on record and it was communicated to the petitioner society vide letter dated 27.06.2011 at Annexure-A/2. Further, the Bye-laws/Articles of association submitted vide letter dated 31.08.2013 was not within the purview of the Statute and contrary to the provisions of the OCS Act 1962, since the proposal for amendment regarding membership after retirement was not taken on record and intimated vide Annexure-A/2. Further, it has been submitted that the proposal for amendment of the Bye-laws of the petitioner society was submitted vide letter No.17 dated 31.08.2013 and received in the Office of the Registrar, opposite partyNo.2 on 02.09.2013 and the Bye-laws after due amendment was communicated vide letter dated 05.09.2014 of the Registrar. So, there is no question of application of deeming provisions of section 12(4) of the OCS Act in the instant case. Since the Clause 6 and 8(5) of the Bye-laws of the petitioner society were not in consonance with the Orissa Self Help (Repeal) Act, 2013 and inserted by the petitioner society arbitrarily, the Clause No.6 was deleted and Clause No.8(5) was modified to keep the Bye-laws to its original position in consonance with the provisions of the Odisha Self Help Cooperatives (Repeal) Act, 2013. It has been further submitted that the proposed amendments were made pursuant to the Orissa Self Help Cooperatives (Repeal) Act, 2013 which stipulates that every Cooperative existing immediately before the commencement of the Act, which has been registered under the Act, so repealed, shall be deemed to be registered under the corresponding provisions of the OCS Act, 1962, be amended in accordance with the provisions of the Act. The petitioner has, in a misinterpretation of position of law, stated that in view of the provisions of section 12(4-a) of the OCS Act, 1962, the amendment of Bye law/Articles of association is deemed to have been registered on expiry of sixty days from the date of its application. The stated provision is not applicable to the petitioner society, where the amendment of the Bye-laws was required to be made pursuant to the Odisha self Help Cooperatives (Repeal) Act, 2013 and there is no deeming provision in Odisha self Help Cooperatives (Repeal) Act, 2013 pursuant to which the Byelaw/Articles of Association of the petitioner society was to be amended. It has been further submitted that the Bye-laws of the petitioner society has been amended pursuant to the provisions of section-3 of the Odisha Self Help Cooperatives (Repeal) Act, 2013 and as such there was no scope or requirement under the Odisha Self Help Cooperatives (Repeal) Act, 2013 for consultation.6. Counter Affidavit has been filed by opposite party no.3 raising the following substantial objection to the maintainability of the writ petition.a) Whether the present writ petition is maintainable when alternative remedy is available under the statutory provisions of law ?b) Whether the present writ application is barred by resjudicata under the principle of Section 11 of the Code of Civil Procedure, 1908 in view of the final order dated 19.07.2017 passed in W.P.(C) No.9152 of 2017 ? Copy of the order dated 19.07.2017 the Government of Odisha, opposite party No.1 has been annexed as Annexure-A/3 to the Counter Affidavit.7. It has been submitted that the President of the petitioner Society, Mr.Dinesh Kumar Ray and four Directors were set up to file a writ petition challenging the appellate order dated 18.04.2017 of the opposite party No.1 in Appeal No.01 of 2014. The said writ application bearing W.P.(C) No.9152 of 2017 was disposed of vide order dated 19.07.2017 giving liberty to those petitioners to prefer a Review Application within a period of two weeks before the opposite party no.1, who after affording reasonable opportunity of being heard to the petitioners passed a speaking order as per Annexure-D/3 to the counter affidavit. It is further submitted that the petitioner society is playing hide and seek role to the process of judiciary and many material facts have been suppressed to mislead this Court. There is no/any illegality in the impugned appellate order under Annexure-8. When the issue has already been decided in order dated 19.07.2017 passed in W.P.(C) No.9152 of 2017, the alternative remedy is available as per the recent notifications in Annexure-A/3 and B/3 before the learned State Co-operative Tribunal, Odisha to whom, in view of Section 110 of this Act, State Government delegated their power of hearing of appeal under section 109 of Odisha Cooperative Societies Act, 1962 read with Rule 144-A of the Odisha Cooperative Societies Rules, 1965, which constituted under section 67- A of the said Act. The present writ petition is barred by the principle of resjudicata under the principle of Section 11 of the Code of Civil Procedure, 1908. It has been further submitted that from the inception the membership of the Society is restricted for Officers of S.B.I. on permanent employment. Consequent upon repeal of the Odisha Self Help Cooperatives Act, 2013 the petitioner society was required to be amended which are inconsistent to the provisions of O.C.S.Act. On scrutiny, the proposal of the petitioner society was found that Article-7 has been changed and the provisions of the Membership of retied employees has been inserted which hit the second provision to section 6(2)(h)(i) of the OCS Act. Similarly the addition of Article-7 to admit nominal members is against the mandate of Repeal Act, since from the inception of the introducing nominal members in Article 6 and continuance of employees after retirement in Article-7 of the Bye-law were new to the existing provisions of Bye-law and the said articles were not acceptable and further, the Secretary of the petitioner society manipulated its Byelaws in respect of Article 8(5) and it came to knowledge of the opposite party no.2 i.e., Registrar of Co-operative Societies, Odisha who corrected the same. Further, it has been submitted that in the Bye-laws registered under Self Help Co-operative Act, the membership was open for Officers working as permanent employees in S.B.I. residing in the area of operation of the Society. After repeal of the Act, the petitioner society regained its original name and status. At the same time, it came to the fold of O.C.S.Act. The opposite party no.2 intimated the petitioner society to submit the Bye-laws for amendment of Clauses which are inconsistent with the provisions of OCS Act, 1962, but the Secretary of the petitioner Society, who has retired as a SBI Officer on 30.11.2007, manipulated the existing Bye-law and submitted the same for approval. So it is finding of the appellate authority that the rejection of the said manipulated Bye-Law which was submitted for its approval and corrected the same. It is also submitted that the appellate authority has given a finding to the extent that the election of the members to the committee of the management of the petitioner society was held on January, 2015 by the Registrar, Co-operative Societies to be illegal and the Registrar has rightly corrected the manipulation of the said Bye-Law which came into force with effect from 05.09.2014, but some retired employees of State Bank of India contested the election in utter violation of the Bye-Law and came to the office of the petitioner society, which was under challenge before the learned Co-operative Tribunal in Election Dispute No.78 of 2015 which is still subjudice. It is further submitted that instead of going for the amendment of the Bye-law of the petitioner society, as per the liberty granted by the appellate authority as per the provisions under section 12 of the O.C.S.Act, the petitioner approached with ulterior and mala fide intention.8. Mr.Manoj Mishra, learned senior counsel being assisted by Mr.Sangram Senapati, learned counsel on behalf of the petitioners in W.P.(C) No.13076 and 19962 of 2017 while assailing the impugned order under Annexures-6 and 8 has strenuously urged that on a plain reading of the Clauses of the Bye-law, it would be clear that the membership is restricted to officers in the permanent employment of the State Bank of India once admitted, there is no provision in Byelaw for cessation of membership after retirement, but in order to obviate the doubt and to protect the interest of the members, those who are on the verge of retirement, a Resolution was passed in amending Clause-7 of Articles of the association by clarifying/amending the membership clause by adding that once admitted the membership will continue till death/ withdrawal or cessation of the membership as per the Bye-law, but the opposite party no.2 passed the impugned order deleting Clause-6 and modifying Clause 8(5) of the Bye-law of the petitioner society under Annexure-6 which has been confirmed by the appellate authority vide order dated 18.04.2017 under Annexure-8. Learned senior counsel further submitted that the appellate authority has come to a perverse finding since the appellate authority could not deal with the justification of the amendment.In a bid to assail the impugned order, learned Senior Counsel has referred to the provisions of section 12 (4-b) of the O.C.S.Act, 1962. Learned senior counsel also submitted that once the proposed amendment and all documents was forwarded to the Registrar, opposite party No.2 for registration on 31.08.2013 which was duly received by the Registrar on 02.09. 2013 in view of section 12(4-a) of O.C.S.Act, 1962 on expiry of 60 days from the date of its application for amendment of the Bye-law, the amendment of the Bye-law of the petitioner society is deemed to have been registered with effect from 01.11.2013. After the cut-off date the Registrar becomes functo officio regarding refusal and has the authority only to forward the amendment and documents along with copy of registered amendment. Learned senior Counsel further submitted that there is no provisions for amendment and correction of the Bye-law by the Registrar suo motu and suggested his own view without assigning any reason thereby opposite party no.2 has exceeded his jurisdiction and made some changes on his own in the Bye-law after the cut-off date in deleting Clause-6 and modifying/changing clause-8(5) of the petitioner society vide registration dated 03.09.2014 which is not permissible in the eye of law. Learned senior counsel further submitted that the appellate authority mis-constructed the facts and dismissed the appeal by non-application of mind, which is contrary to the provisions of O.C.S.Act, 1962. Learned senior counsel further submitted that the opposite party no.2 without consulting the society without asking for any clarification from the society deleted the Clause-6 of the Bye-law and modified clause-8(5) of the Bye-law of the society in replacing the word 'after' by the word 'till'. The Registrar had also not asked any clarification from Central Cooperative Society in which the society has been affiliated. Further the opposite party no.2 has also deleted some clauses and changed some clauses of the Bye-law of the society without giving any opportunity of being heard to the society and issued certificate of registration dated 03.09.2014 with some modification in the Bye-law. Therefore, the impugned order vide registration dated 03.09.2014 under Annexure-6 is illegal, improper, erroneous and suffers from nonapplication of mind being contrary to the provisions of the Statute and settled position of law.Learned senior counsel further submitted that it is the settled principle of law that where the Statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner. In view of Section 12(4) of the Act, 1962 the Registrar can refuse the amendment and communicate the order of refusal together with the reasons therefor to the Society, but there is no provisions for correction of the bye-law by the Registrar. Since the Registrar at Annexure-6 had made correction in the Byelaws without any reason, the same is not permissible in the eye of law.Learned senior counsel has relied upon the decision ( Dipak Babaria and another-vrs.-State of Gujarat and others, (2014) 3 SCC 502 (para-61) ). Learned senior counsel submitted that when the legislature uses a deeming provisions to create a legal fiction, it is always used to achieve a purpose and has to be given full effect. Once the deeming clause kicked in, on the cutoff date, by the deeming legal fiction, the amendment is registered. In view of section 12(4-a) of the Act, 1962 if the certificate referred to in sub-section (3) or order of refusal referred to in sub-Section (4) as the case may be, is not communicated to the society within a period of sixty days from the date of its application for registration, the amendment of the Bye-laws, shall be deemed to have been registered with effect from the date following the date of expiry of the said period and upon such registration, the Registrar shall forward to the society a certificate of registration of such amendment along with a copy of the registered amendment within seven days from the date of such registration. Thus, in view of section 12(4-a), the Registrar becomes functus officio on 30.11.2013 as the proposed amendment had been received by the Registrar on 02.09.2013 and the amendment of the Bye-laws of the petitioner society is deemed to have been registered with effect from 01.11.2013. Learned senior counsel in order to buttress his submissions has also referred to the decision (M.Aamira Fathima and others-vrs.- Annamalai University and others, (2018) 9 SCC 171 (Para-17) ), (Gurupad Khandappa Magdum-vrs.-Hirabai Khandappa Magdum and others, (1978) 3 SCC 383 (Para-12) ) and (Union of India-vrs.- S.I.verma and others, (2006) 12 SCC 53 (para-7) ).9. Mr.S.Mishra, learned Additional Government Advocate has vociferously submitted that the order passed under Annexure-8 is legal, justified and does not suffer from any illegality so as to warrant interference by this Court. Learned counsel for the State further submitted that on perusal of paragraphs-6 and 7 of the impugned order under Annexure-8, it would be quite luculent that liberty has been given to the petitioner society to amend the bye-law as and when necessary in terms of section 12 of Odisha Co-operative Societies Act read with the relevant Rules. Therefore, the petitioner society cannot have any grievance so far as the amendment of the Bye-law is concerned.10. Mr.R.B.Mohapatra, learned counsel for opposite party no.3 vehemently submitted that the petitioner society, who was under the fold of Odisha Self Help Co-operative Act 2001 submitted an application on 16.05.2011 before the opposite party no.2, the Registrar of Co-operative Societies, Odisha for amendment of the Byelaw/Article of association. Opposite party no.2 issued a letter on 16.05.2011 assigning the reasons for amendment to the Byelaw/article of association could not be taken on record due to the following deficiencies.a) It is not forthcoming from the information sheet as to whether notice along with the proposed amendment with reasons therefore have been sent to each members as provided under section 7(1) of Odisha Self Help Co-operative Act, 2001 ?b) It is also not forthcoming as to whether a special resolution has been adopted in the General Body dated 24.04.2011 for the purpose of amendment as per the provisions under section 2(40) of Odisha Self Help Co-operative Act, 2001 ?c) The name of the cooperative reveals that it is for the Odisha State Bank Officer, whereas the proposed amendment allows the retired officers without changing the clause of the Bye-law in the Annual General Body meeting.The Registrar of Co-operative Societies, opposite party no.2 also intimated the petitioner society vide letter No.12910 dated 29.06.2011 as per Annexure-A/2 to the counter affidavit filed by opposite party no.2. Learned counsel for opposite party no.3 further submitted that the proposal for amendment of the Bye-law of the petitioner society was submitted vide letter No.17 dated 31.08.2013 and received in the Office of the Registrar, opposite party no.2 on 02.09.2013 and the Bye-law after due amendment was communicated vide letter dated 05.09.2014 of the Registrar. So there is no question of application of deeming provision of Section 12(4) of the O.C.S.Act, 1962 in the instant case. Since Clause-6 and Clause8(5) of the Bye-laws of the petitioner society was not in consonance with the Odisha Self Help Co-operative ( Repeal ) Act, 2013 and inserted by the petitioner society arbitrarily, the Clause-6 was deleted and Clause-8(5) was modified to keep the Bye-laws in original position in consonance with the provisions of the Odisha Self Help Co-operative (Repeal) Act, 2013.Learned counsel for the opposite party no.3 further submitted that since the proposal for amendment of Clause-6 and 8(5) are contrary to the mandate of Section 3 of Odisha Self Help Cooperative (Repeal) Act, 2013 which provided that the provisions of Bye-law or Article of Association inconsistent with the provisions of OCS Act, 1962 are to be amended. Therefore, the proposed amendment of Clause-6 and 8(5) was not permissible as per Odisha Self Help Co-operative (Repeal) Act, 2013. Under Clause-6 and 8(5) of the Bye laws were not in their Bye-laws under the Odisha Self Help Co-operative Act, 2001. So, incorporation of new provisions beyond the scope of mandate of the Odisha Self Help Co-operative (Repeal) Act, 2013 in the Bye-law for the purpose of said amendment is illegal and not sustainable in the eye of law. Therefore, the deletion/modification/correction of the Bye-law under Annexure-6 is appropriate and in consonance with the provisions of Odisha Self Help Co-operative (Repeal) Act, 2013.11. Mr.S.D. Tripathy, learned counsel appearing in W.P.(C) No.502 of 2018 has referred to Annexure-4 whereby liberty was given to the petitioner to seek remedy under section 111 of the O.C.S.Act for review of the impugned order dated 29.11.2017 passed in Review No.01 of 2017 and the order dated 28.04.2017 passed in Appeal Case No.01 of 2014 is not sustainable in view of Section 12(4-a) of O.C.S.Act, 1962. Further the learned counsel submitted that no reason has been assigned in dismissing the review vide order dated 29.11.2017.12. In order to appreciate the rival contentions of the respective parties in the aforesaid writ applications the following relevant clauses of the Bye-law are required to be referred to. Clause-3: Objects:The primary objects of the society shall be to provide pucca buildings with cement flooring and with fire proof roof to the members and to provide loan to the members for construction of houses. In pursuance of the main objectives:-a) The Society shall take lease/outright purchase of lands from Government, Municipality and N.A.C. or any other agencies/individual as the case may be in lot and shall purchase land and shall develop the same to provide to members on receipt of salami or cost, either in installments or in full for construction of new pucca building for residential purposes, the plan and estimate being approved by the Society.b) The Society may also construct pucca building over the lands purchased or taken on lease and allot to the members on payment of cost either in installment or in full. In case of necessity the Society may also allot land after development to the members for construction of houses by the members with the loan available from the Society.c) To raise funds for its business by means of share capital from members, deposit from members, loan or cash credit from OSLB Co-operative Banks and Commercial banks, HUDCO, SBI Home Finance Ltd. etc.d) To undertake welfare activities for the benefits of the members and employees and do such other things as are incidental and conducive to the attainment of the above objectives.Clause-6 : Membership :The membership shall be open to the permanent employee officers of state Bank of India Branches/Offices in Orissa.a) Any employee above the age of 18 years and is competent to contract and reside within the area of operation of the Society. But no person can claim admission as a matter of right.b) The persons who are not eligible to become members in accordance with provision of Orissa Co-operative Societies Act and Rules cannot be admitted as members.c) The land-owners intending to sell land to the Society will become members of the Society by acquiring at least one share, but they will have o voting right.Clause-12 : Expulsion of members :a) If a member deceives the Society in any way or if his general conduct is such as to render his removal necessary in the interest of the Society it shall open to the Committee to expel such member provided he has been given a reasonable opportunity of being heard.b) The member so expelled will have a right of appeal to the General Body against the decision of the Committee within two months from the date of such decision.c) A person, who has ceased to be a member, shall be paid all his money due to him from the Society after deducting there from any money due from him to the Society and he shall be liable as provided in Bye-laws No.4 for the dues of the Society as they stand on the date of cessation of membership for a period of 2 (two) years from such date.13. After coming into force of the Orissa Self Help Cooperatives Act, 2001, the petitioner society was registered under the said Act and was issued a certificate bearing Registration No.35 dated 11.05.2010 vide Annexure-2 to the writ petition. Clauses-6,7 and 9 of the Bye law are relevant which are referred to herein below.Clause 6 : Objects/Core Service:The primary objects of the cooperative shall be to provide plot of land/pucca Buildings/flats with fir proof roof to members and to provide loan to the members for acquisition of house/construction of house/maintenance & repair of house or for renovation of house.In furtherance to the above mentioned objective:-a) The cooperative shall take land on lease or on outright purchase from Government, Quashi-Government Bodies, any other agency or individuals, as the case may be, in lot and shall develop the same to provide to members on receipt of salami or cost either in installments or in full for construction of pucca building for residential purposes, the plan and estimate being approved by the concerned authorities and duly accepted by the cooperative.b) The cooperative may construct pucca Building over the land purchased or taken on lease and allot o the members on payment of its costs either in installments or in full. If necessary the cooperative may also allot land before or after development to members for construction of houses by members either with loan availed from cooperative or at their own cost.c) The cooperative may also enter into arrangement with reputed builders to construct Buildings/Flats in the land acquired by the cooperative and allot houses/flats to members on payment of cost in installments or in full or may allow the Builders to commercially develop the housing site on surplus sharing basis with the cooperative and its members.d) To create funds to be utilized for the purposes noted in (b) and (c) above.e) To lend or advance money to members for construction of houses etc. as per (a) above and as per subsidiary rules to be approved by the General Body.f) To provide services to the potential members as may be decided by the Board of the Directors subject to the provision of the Co-operatives Act.g) To acquire and develop house sites and construct buildings for allotment among potential members on payment of cost thereof under such terms and conditions as may be decided by the Board of Directors and to sanction loan for the purpose, provide they shall be enrolled as member within 90 days from the date of such allotment.h) In case the Cooperative provides Flats/Building in a particular place (exceeding 20 houses), the Cooperative will arrange for provision of road, water supply, sanitation, electricity etc. on payment of such amount as shall be decided by the Board.i) The Cooperative may take care of the security and maintenance of the colony/complex so developed on payment of cost by the members as decided by the Board.j) The Cooperative may develop Swimming Pool, Gymnasium, Tennis Court, Badminton Court and other facilities for indoor and outdoor games, recreation Centre, marriage mandops, shops and schools etc. for the benefit of its members as well as their family members on payment of normal users fees as decided by the Board from time to time with approval of the General Body.k) The above facilities as at Clause 'l' may also be extended to outsiders on payment of ready cash with due approval of the Board.l) To undertake welfare activities for benefit of the members and employees and do such other things as are incidental and conducive to the attainment of the above objectives.m) Service to non-members shall be such as may be decided by the General Body subject to the provisions of Orissa Self Help Co-operative Act, 2001.Clause-7 : Membership :All the members of All Orissa State Bank Officers' Housing Cooperative Society Ltd. Shall deemed to be the members of this Cooperative Registered under Cooperatives Act from the date of registration of the Cooperative under the said Act.(i) Membership of the cooperative shall be open at the time of admission to officers in the permanent employment of State Bank of India and working/residing in the area of operation of the Cooperative.(ii) For admission as member the applicant shall be required to deposit non-refundable admission Fee of Rs.50/- (rupees fifty only) or such other higher sum as may be stipulated by the Board and at least Rs.100/- (Rupees one hundred only) towards the value of one equity.(iii) Qualification for admission of the applicant as member shall be as under:a) That the applicant is an officer in the permanent employment of State Bank of India functioning in the State of Orissa.b) That the applicant is competent to contract under the Indian Contract Act, 1872,c) That the individual is not of unsound mindd) That he/she resides in the member drawing area of the cooperative,e) That he/she has not failed to pay any amount due to cooperative,f) That he/she is not convicted of any criminal offence involving moral turpitude.g) That he/she is not a member of any other Cooperative/Cooperative Society having similar business/objectives.iv) Ineligibility for membership :An individual who is of unsound mind, residing outside the member drawing area of the Cooperative, fails to pay any amount due whether in cash or in kind to the cooperative or to any other cooperative/cooperative society/financing bank, convicted of any criminal offence involving moral turpitude, engaged employed in a business competing/conflicting with the business of the Cooperative or a member of any other Cooperative having similar business, shall not be eligible to be admitted as a member or be allowed to continue his membership.Provided that in case of acquiring any disqualification, the member concerned shall be given an opportunity by the Board to show cause of the proposed termination within 15 days from the date of issue of notice by registered post.Clause-9 : Cession of membership:(i) A member shall cease to be a member, if he or she (a) Incurs disqualification for membership, or(b) Resigns from his membership and such resignation is accepted by the Board, but no member shall be permitted to resign if is indebted to the Cooperative, or(c) Is expelled, or(d) Dies, or(e) Has been adjudged insolvent by a competent Court or is of unsound mind, or(f) Has been punished with imprisonment for an offence involving moral turpitude, or(g) Has made change of residence permanently from the area of operation of the Cooperative, or(h) Has transferred all the equities on application to the account of any other existing member.(ii) The member intending to resign or withdraw from membership shall apply in writing to the Cooperative for the purpose. The Chief Executive shall place the same along with claims of the cooperative against him/her and the vice-versa in the meeting of the Board to be held after the date of receipt of such application. The Chief Executive shall intimate the decision of the Board to the member within 15 days from the date of meeting of the Board by Registered post or by personal service with due acknowledgment.(iii) In case of cession of membership due to de

Please Login To View The Full Judgment!

ath or transfer of all equities, the Chief Executive of the Cooperative shall intimate to the Board in the first meeting from such cessation and to the legal heirs or the nominee/member as the case may be, within 15 days from the date of such cessation.14. The Self Help Co-operatives Act, 2001 was repealed vide Annexure-4 dated 06.06.2013. After repeal of the said Act, the petitioner society took decision to amend the Bye-law for the benefit of the members and for the fulfillment of the object of the society.15. Clause-8 of the Bye-law which relates to admission and continuance as members. In Clause 8.5, it is stipulated that once admitted, the membership shall continue after retirement from service as an officer of State Bank of India till his/her resignation or cessation of membership as the case may be." The proposed amendment with all documents was forwarded to the Registrar for registration, which was received on 02.09.2013.16. Section-12 of the Orissa Cooperative Societies Act, 1962 deals with amendment of the Bye-laws of a society. Section 12(4) of the Act provides that " where the Registrar refuses to register an amendment of the Bye-laws of a Society, he shall communicate the order of refusal together with the reasons there for to the Society. Section 12 (4-a) of the Act, 1962 provides that "if the certificate referred to in Sub-Section (3) or order of refusal referred to in Subsection (4), as the case may, is not communicated to the society within a period of sixty days from the date of its application for registration, the amendment of the Bye-laws, shall be deemed to have been registered with effect from the date following the date of expiry of the said period and upon such registration, the Registrar shall forward to the society a certificate of registration of such amendment along with a copy of the registered amendment within seven days from the date of such registration."17. On perusal of the impugned order passed by the Registrar vide Annexure-6 dated 03.09.2014, it appears that after expiry of one year, the order has been passed deleting some clauses and modifying/changing Clause 8(5) by the word 'till' and other clauses of the Bye-law of the petitioner society.Being aggrieved by the order of the Registrar, the petitioner society filed appeal challenging the action of the registrar in Appeal No.01 of 2014 which has been dismissed vide Annexure-8.18. Further the impugned order passed by the Registrar transpires that the opposite party no.2 has acted beyond its power conferred under the Statute. Since he has passed order by making correction in the Bye-law which is beyond his jurisdiction. Moreover, there is no provision under the Act which confers powers on the Registrar for correction of the Bye-law and registering the same. Therefore, the impugned order under Annexure-6 is bereft of the provision of Statute and contrary to the settled position of law as has been referred to supra.19. So far as the order passed by the appellate authority is concerned, the same has been passed basing on a letter dated 27.06.2011 of the Registrar regarding amendment under the Repeal Act, 2001 which has never been served as alleged by the petitioner society. Moreover the letter dated 27.06.2011 has no relevance after repeal of the Self Help Cooperatives Act, 2001 in the year 2013. On that score the order passed by the appellate authority is not legally sustainable.20. On cumulative effect of the aforesaid facts coupled with judicial pronouncement, the impugned order under Annexure-6 of opposite party no.2, the Registrar, Cooperative Societies regarding deletion and correction of the clauses of the Bye-laws under Annexure-6 and order dated 18.04.2017 passed by the appellate authority in Appeal No.01 of 2014 under Annexure-8 is quashed and set side and the case is remitted to the Registrar, Cooperative Societies to consider afresh in accordance with law as per the relevant provisions of the Co-operative Societies Act as expeditiously as possible preferably within a period of three months from the date of receipt of the copy of the order.21. In the light of the aforesaid order, W.P.(C) No.19962 of 2017 and W.P.(C) No.502 of 2018 stand disposed of accordingly.
O R