I C Naik
The Pioneering Maharashtra State Law writers have outsmarted Constitution Amendment writers. A few examples
1. The Constitution (97th Amendment) Act 2011 [In short ‘the 97-CAA’] in a new part ‘Part IXB: The Cooperative Societies’ has coined a new term “authorized person” to mean “a person referred to as such in article 243ZQ” [Clause (a) in ArticleNo. 243ZH]. This term is meant to be for an exclusive application in relation to offences and penalties for such offences under cooperative law of the State.
Sub-Section (2) provides a list of commission or omission of certain acts amounting to be offences under the Act. In only two matters this term “authorized person” has found application.
a. A co-operative society or an officer or member thereof willfully makes a false return or furnishes false information, or any person willfully not furnishes any information required from him by a person authorized in this behalf under the provisions of the State Act;
b. A custodian who willfully fails to hand over custody of books, accounts, documents, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to an authorized person;
2. In a smart move drafters of the State law quietly expanded the term as a convenient tool in the hands of the Registrar for application to the entire spectrum of cooperative society law through ‘The Maharashtra Cooperative Societies (Amendment) Act 2013 (MCSA2013) specifically enacted to give effect to provisions of ‘the 97-CAA’.
Section 2 thereof provided that “in its section 2 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as the M. C. S. Act 1960 “),— (a) after clause (2), the following clause shall be inserted, namely:—
“(2-A) “authorized person” means any person duly authorized by the Registrar to take action under the provisions of this Act;”
3. In continuation of the smart move the drafters used this term to sabotage a new Constitutional imperative towards autonomy of self contained (unaided) cooperatives. In the following paragraphs this move is explained with complete elaboration.
4. Art. 243ZL emphatically provides that (1) Notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months:
a. Under the first proviso to this Article, five specific situations are listed which may invite Registrar’s attention to supersede the board and the last of such situations is this: (v) the authority or body as provided by the Legislature of a State, by law, under clause (2) of article 243ZK, has failed to conduct elections in accordance with the provisions of the State Act:
b. Notwithstanding a case of arising a situation as stated in sub-Para a. above the second proviso to Article 243ZL exhibits an extremely clear stand taken by the Parliament as regards autonomous character of cooperatives having zero dependence on the State like privately owned public limited companies. This proviso reads thus: Provided further that the board of any such co-operative society shall not be superseded or kept under suspension where there is no Government shareholding or loan or financial assistance or any guarantee by the Government.
c. MCSA2013 submissively made a provision prohibiting the supersession of Committees in unaided cooperative societies by inserting an identical proviso to Section 78(i) reading as “Provided that, nothing in this sub-section shall apply to a society, where there is no Government shareholding or loan or financial assistance in terms of any cash or kind or any guarantee by the Government” Sub-Section (i) of 78 referred herein reads as under:
78 (i) If, in the opinion of the Registrar, the committee makes a persistent default in performance of its duties or is negligent in the performance of its duties or is otherwise not discharging its functions properly and diligently, or there is a stalemate in the constitution or functioning of the committee, occasioned by resignation, disqualification of members of committee or otherwise, the Registrar, after giving the committee an opportunity of showing cause, in writing, if any, within fifteen days from the date of receipt of notice and after giving reasonable opportunity of being heard and after consultation with the federal society to which the society is affiliated, comes to a conclusion that the charges mentioned in the notice primafacie exist, but are capable of being remedied with, he may by order,—
(i) keep the committee under suspension for such temporary period, not exceeding six months as may be specified in the order; and
(ii) appoint an administrator or committee of administrators consisting of three or more members of the society otherwise than the members of the committee so suspended in its place or appoint an administrator or committee of administrators who need not be the members of the society, to manage the affairs of society :
5. In utter defiance of this second proviso to Article 243ZK, the drafters of the MCSA2013 inserted certain new sections and substantially amended certain existing sections in the M. C. S. Act 1960, abusing the term “authorized person” in substitution of “the Administrator” as discussed herein after.
a. Section 41 of MCSA2013 inserted section 73I after section 73H of the principal Act, relevant portion of which is reproduced below:
Sub-Section (2) “Where ….. for any reason whatsoever, election of the members of the committee could not be held before the expiry of its term then the members thereof shall cease to hold their office and in such a situation the Registrar shall take action as contemplated under section 77A.
Section 44 of MCSA2013 has made significant changes in section 77A especially to substitute the prohibited specie namely the Administrator by “the authorized officer” The actions the Registrar is required to take as state above are explained below.
b. The Registrar may, by order appoint, if no member(s) is /(are) willing, one or more authorized officers, not being a member of the society, as he may deem fit, to look after affairs of the society.
c. The authorized officer so appointed shall, subject to the control of the Registrar and to such instructions as he may, from time to time, give, have power to discharge all or any of the functions of the committee or of any officer of the society and take all such action as may be required to be taken in the interests of the society.
d. The authorized officer so appointed shall hold office for a period of six months from the date of assuming the management of the society and shall make necessary arrangements for constituting anew committee within the said period and for enabling the new committee including any new committee referred to in clause (f) of sub-section (1), which is determined by the Court to have been legally elected, to enter upon office.
e. In no circumstances the term of office of the authorized officer shall exceed six months from the date of holding office.”;
6. As for the committees having ended their term before 31 3 2013, the State Cabinet has assumed the powers to postpone elections for a year and also defer the appointment of the State Cooperative Election Commissioner (SCEC) irrespective of the fact that
a. it amounted to flouting the State Assembly mandate given under Section 73CB(15) of the M. C. S. Act 1960 to hold elections before 31 1 2 2013 and
b. the direction of the Bombay High court issued on 4 12 2013 to appoint the SCEC with in a fortnight.
If the Government flouts the State Law and Constitution what does it expect the Amm Aadmi to do?
