Bangladesh Co-Operative Insurance Limited and others Vs. Md. Abdul Khaleque Khan and others, II ADC (2005) 574

Case No: Civil Appeal No. 58 of 1994

Judge: Mohammad Abdur Rouf ,

Court: Appellate Division ,,

Advocate: Dr. Kamal Hossain,MR. SR Pal,,

Citation: II ADC (2005) 574

Case Year: 2005

Appellant: Bangladesh Co-Operative Insurance Limited and others

Respondent: Md. Abdul Khaleque Khan and others

Subject: Writ Jurisdiction,

Delivery Date: 1997-8-17

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal CJ
Mustafa Kamal J
Mohammad Abdur Rouf J
Bimalendu Bikash Roy Choudhury J
 
Bangladesh Co-Operative Insurance Limited and others
…………….............Appellants
Vs.
Md. Abdul Khaleque Khan and others
……………............Respondents
 
Judgment
August 17, 1997
 
It was held that such Ad hoc committee was amenable to the writ jurisdiction of the High Court Division having come within the definition of local authority in the General Clauses Act, 1897, as amended by P.O. No. 147 of 1972 in as much as under the said amended provision “local authority” now includes amongst others any corporation, or other body or authority constituted or established by the Government under any law.……(25)
 
Cases Referred to-
Ziaul Huq Vs. East Pakistan Co-opera­tive Society Limited and others, PLD 1969 (Dhaka) 105; Deputy Managing Director and Chairman, National Bank of Pakistan and others Vs. Ataul Haque 17 DLR (SC) 74; Foiz Ahmed vs. Registrar, Co Operative Society PLD 1962 (SC) 315; Jainal Abedin Vs. Multan Co-Operative Bank Limited, PLD 1966 (SC) 445; S.S. Dhanoa Vs. Municipal Corporation, Delhi and others AIR 1981 (SC) 1359.
 
Lawyers Involved:
Dr. Kamal Hossain, Senior Advocate (Khademul Islam Chowdhury, Advocate, with him), instructed by Md. Nawab Ali, Advocate-On-Record-For the Appellants.
S.R. Pal, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-On-Record-For Respondent No.1.
Not Represented-Respondent Nos.2-6.
 
Civil Appeal No. 58 of 1994
(From the Judgment and Order dated 16th May, 1993 passed by the High Court Division, in Writ Petition No. 683 of 1989).
 
JUDGMENT
 
Mohammad Abdur Rouf J.
 
The appellant, Bangladesh Co-Operative Insurance Limited, briefly "the Society", has called in question by leave the judg­ment and order of a Division Bench of the High Court Division dated 16.5.93 passed in Writ Petition No. 683 of 1989 holding, inter alia, that the Ad hoc Managing Committee of the appellant's Society being a "local authority", as defined in Section 3(28) of the General Clauses Act 1897, is amenable to the writ jurisdiction of the High Court Division under Article 102 of the Constitution.
 
2. The relevant facts are as follows:- Respondent No.1, Abdul Khaleque, former Secretary of the appellant's Society, was dismissed from service by an Ad hoc Managing Committee of the Society. He challenged the order of dismissal in the aforesaid writ petition on a number of grounds including a ground of malafide and obtained a Rule Nisi.
 
3. The appellant-Society opposed the Rule, by filing an affidavit-in-opposition and contending, inter alia, that it is neither a Government, nor a local authority, as provided in the Constitution, and as such the High Court Division has no authority to interfere with its affairs under Article 102 of the Constitution.
 
4. The learned Judges of the High Court Division by the impugned judgment and order held that since the Managing Committee of the appellant-society was an Ad  hoc Committee, appointed by the Registrar of the Co-Operative Society in exercise of his authority under section 23 of the Co-operative Society Ordinance, 1984, shortly ‘the Ordinance' and since the provi­so to Section 15 vests the final authority in the Government, it was a local authority within the meaning of Section 3(28) of the General Clauses Act, 1897 and as such the impugned action of the said society could be reviewed judicially by the High Court Division under Article 102 of the Constitution. Accordingly upon making the Rule Nisi absolute on merit the learned Judges declared the dismissal of respondent No. 1 from service void and unlawful.
 
5. Leave was granted to consider as to whether the High Court Division has fallen into an error in holding that when the affairs of a Co-Operative Society are managed by an appointed Ad hoc Managing Committee, it comes within the definition of "local authority", although whenever its affairs are managed by an elected Managing Committee it may not be a local authority.
 
6. Dr. Kamal Hossain, learned Counsel appearing for the appellant-society submits that it is a settled question of law in this sub-continent that a Co-operative Society does not fall within the definition of "local authority" and that it is not amenable to the writ jurisdiction of the High Court Division. As such the High Court Division has patently taken an erroneous view that when the affairs of a Co-Operative Society are managed by an appointed Ad hoc Managing Committee the society comes within the definition of "local authority" and thereby it is amenable to the writ juris­diction under Article 102 of the Constitution. Dr. Hossain further submits that there is little logic to differentiate between the legal status of a Co-Operative Society, when its affairs are managed by an appointed Ad hoc Committee or when it is managed by a regularly elected Managing Committee, because the nature and charac­ter of such a society is determined by its formation and the functions performed by it and also because the appellant-society does not come within the definition of "person", contained in Clause (5) of Article 102 of the Constitution or as a "statutory public authority", as defined in Article 152 there­of. Dr. Hossain finally submits that when, admittedly, a regularly elected managing committee of a Co-Operative Society is not amenable to the writ jurisdiction under Article 102(2) of the Constitution it will not be in conformity with law to make the Ad hoc committee of such Society, appointed under Section 23 of the Ordinance, amenable to the writ jurisdiction as well.
 
7. In support of his contention Dr. Hossain cited the following decisions:- Ziaul Huq Vs. East Pakistan Co-opera­tive Society Limited and others, PLD 1969 (Dhaka) 105; Deputy Managing Director and Chairman, National Bank of Pakistan and others Vs. Ataul Haque 17 DLR (SC) 74; Foiz Ahmed vs. Registrar, Co Operative Society PLD 1962 (SC) 315; Jainal Abedin Vs. Multan Co-Operative Bank Limited, PLD 1966 (SC) 445; S.S. Dhanoa Vs. Municipal Corporation, Delhi and others AIR 1981 (SC) 1359.
 
8. On the other hand Mr. S.R. Pal, learned Counsel appearing for respondent No.1, submits that the cases cited by Dr. Hossain have little to support his contention in view of the fact that a radical change has been brought in this country since 1964 in the field of Co-operative movement by amending the Co-operative Societies Act, 1940 and the same scheme is now being maintained under the Ordinance by incorporating an identical provision in the sec­ond proviso to Section 15 thereof. From the date of dismissal of the managing commit­tee under Section 22 of the Ordinance to the date of Constitution of a regular managing Committee under section 18 thereof the final authority of the Co-operative Society remains vested in the Government, when the impugned order of the respondent's dis­missal from service was passed by the Ad hoc Managing Committee. The learned Judges of the High Court Division were therefore justified in holding that the writ petition against such order is maintainable.
 
9. It appears from the repealed Co-oper­ative Societies Act, 1940 that an identical provision like that of the second proviso to Section 15 of the "Ordinance" was added in the said Act in section 20 thereof by East Pakistan Act No. XVIII of 1964.
 
10. To appreciate the submissions of the learned Counsels of both sides we propose to quote the relevant provisions of both the Co-Operative Societies Act, 1940 as well as the Ordinance of 1984.
 
11. Section 15 of the Ordinance runs as hereunder:-
 
"15. Final authority of a co­-operative society.- The final authority of every co­operative society shall vest in the general body of members in general meeting:
Provided that, in such circum­stances as may be prescribed, the final authority may vest in the dele­gates of such members, elected in the prescribed manner and assembled in general meeting:
Provided further that from the date of dissolution of the managing committee under Section 22 to the date of constitution of a managing committee under section 18, the final authority of co-operative soci­ety shall vest in the Government.
The general meeting shall be summoned and shall exercise its authority in such manner as may be prescribed." 
 
12. Section 20 of the repealed Co-oper­ative Societies Act, 1940 runs as follows:-
 
"20. (1) The final authority of every co-operative society shall vest in the general body members in gen­eral meeting:
Provided that, in such circum­stances as may be prescribed, the final authority may vest in the dele­gates of such members, elected in the prescribed manner and assembled in general meeting:
Provided further that from the date of dissolution of the managing committee under section 25 to the date of constitution of a managing committee under section 21, the final authority of a co-operative society shall vest in the Bangladesh Government.
(2) The general meeting shall be summoned and shall exercise its authority in such manner as may be prescribed." 
 
13. Thus, it appears that by adding the Second proviso to sub-section (1) of Section 20 of the Act of 1940 by East Pakistan Act No. XVIII of 1964 a radical change was brought about in the field of Co-operative society by way of getting the final authority of the Society vested in the Government so long as the regular manag­ing committee remained dissolved under section 25 till its reconstitution under sec­tion 21 thereof, although normally the final authority of every co operative society remains vested in the general body of its members or in the delegates of such members as provided in the Rules and elected in the prescribed manner by the general members.
 
14. The changes that were brought about in 1964 in the scheme of Co-operative society in the Then East Pakistan has virtually been maintained by the Ordinance of 1984 in the aforesaid proviso to section 15 quoted above.
 
15. The legislature  appears to have drawn purposely an intelligible differentia in the legal statutes of a Co-Operative Society when it is managed by regular elected managing committee, elected by its general members under Section 18 of the Ordinance and when it is managed by an Ad hoc Managing Committee, appointed by the Registrar under Section 23 thereof, so long as its regular committee remains dissolved under section 25 till its reconstitution under section 18 thereof, and during dissolution of a managing committee the final authority of the Society remains vest­ed in the Government.
 
16.  Let us now consider whether a co­operative society when its affairs are man­aged by an appointed Ad hoc committee does qualify itself to be a 'local authority' within the meaning of clause (2) of Article 102 of the Constitution.
 
17. Article 102 (2) does not define what is a 'local authority' but in view of provi­sions of Clause (2) of Article 152 of the Constitution, General Clauses Act, 1897 shall apply in relation to this Constitution as it applies in relation to an Act of Parliament. Section 3 (28) of the General Clauses Act, 1897, amended by P.O. No. 147 of 1972 gives the present definition of 'local authority' as follows:- 
 
(28) "local authority'- "Local authority" shall mean and include a Paurashava, Zilla Board, Union Panchayat, Board of Trustees of a port or other author­ity legally entitled to, or entrusted by the Government with, the control or manage­ment of a municipal or local fund, or any corporation or other body or authority con­stituted or established by the Government under any law; 
 
Before such amendment the term "local authority" was defined under the General Clauses Act as hereunder; 
 
"Local authority" shall mean a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund; 
 
18. Under the present definition "local authority" shall "mean and include" "other body or authority-constituted or established by the Government under any law". Thus having regard to the provisions of t he Act, the constitution and functions of the Ad hoc Managing Committee of the Society we have no hesitation to hold that such com­mittees of a society clearly comes with the meaning of "Local authority" as defined in Section 3(28) of the General Clauses Act.
 
19. Now we propose to discuss a few of the cases cited by Dr. Hossain in support of his contention that a writ petition does not lie against a co-operative society.
 
20. National Bank's case, 17 DLR (SC) 74, does not in any way help Dr. Kamal Hossain. In that case a Division Bench of the then Dacca High Court under Article 98(2) of the then Constitution of 1962 declared an order of an Ad hoc Election Appeal Committee, made under bye-laws 16 of the Election Bye-laws of the National Bank of Pakistan, void and unlaw­ful. A question was then raised before the Supreme Court of Pakistan as to the juris­diction of the then Dacca High Court to issue such writ under Article 98(2) of the Constitution of 1962 and it was held that the National Bank of Pakistan does not fall within the definition of local authority and that the Chairman and members of the said Ad hoc Committee became functus officio after the decision had been given by them on the irregularities alleged to have been committed in the election of certain Directors of the Bank by its share holders registered at Dacca and such Committee was no longer in existence when the writ petition was filed and as such Dacca High Court had no jurisdiction to issue writ in the matter.
 
21. Citing the next case, reported in PLD 1959 (Dhaka) 105, Dr. Hossain argued that the then East Pakistan Co­operative Insurance Society Limited, in fact, has been renamed as the Bangladesh Co-Operative Insurance Society Limited, appellant No.1 herein. A Writ Petition under the then Article' 98(2) of the Constitution of 1962 was moved against the East Pakistan Co-Operative Insurance Society Limited calling in question the order of removal of its Managing Director from the office, who was formerly appoint­ed as its General Manager by the Managing Committee of the said society and subse­quently was appointed as its Managing Director upon a fresh contract by the chair­man. It was held that the writ petition against such an order was not maintainable and the judgment was affirmed by the Supreme Court of Pakistan by refusing to grant leave. Thus Dr. Hossain submits that an identical provision having been made in the present Article 102 of the Constitution with that of Article 98 of the Constitution of 1962 it can safely be held that it is a settled law that no writ lies against the present appellant, which is the Successor of the then East Pakistan Co-operative Insurance Society Ltd. This case also helps Dr. Hossain little in view of the fact that in that case the question was whether mandamus would lie to enforce the right founded pure­ly on private contract in as much as the writ petitioner claimed his right to remain in office as its Managing Director with an enhanced remuneration on the basis of a contract entered into between himself and the Chairman of the then East Pakistan Co-Operative Insurance Society Limited. Moreover no question was raised as to the legal status of the Ad hoc Managing Committee of the said Society as has been raised in the instant case.
 
22. The next case cited by Dr. Hossain, PLD 1962 (SC) 315, does also not help him to substantiate his present contention. In the cited case, an employee of the then Pakistan Co-operative Bank Limited ques­tioned the authority of the Bank to dismiss him from service without issuing a second show cause notice alleging, inter alia, that the Bank had adopted the procedure of the Government Civil Service Rules for taking disciplinary action against its employee and as such he was entitled to the protection given to the Government Servant under sec­tion 240(3) of the Government of India Act, 1935. Virtually the case was decided on merit and ultimately it was held that the writ of mandamus was misconceived in relation to the restoration of office, which was not a public office. No issue as to the legal status of an Ad hoc managing Committee was raised therein.
 
23. The next case is PLD 1966 (SC) 445. It was a case under Article 170 of the then Constitution of 1956 read with Clause 2 (4) of the Laws (Continuance in Force) Order, 1958 for granting a writ of man­damus upon the respondent to restore the appellant, as ordered by the Government, to the office of Accountant in the Pay Scale of Rs. 500/- to 700/- with usual allowance or in the alternative to place him as a Branch Manager of Multan Co-operative Bank Limited in the pay scale of Rs. 500/- to 750/-. A Division Bench of the West Pakistan High Court at Lahore summarily dismissed the writ petition and it was upheld by the Supreme Court of Pakistan observing, inter alia, that the civil service rules were not made applicable to the employees of the Bank and the writ of man­damus was misconceived. The present issue was not involved therein.
 
24. Dr. Hossain could not cite any decision touching exactly upon the point that has been raised in the instant case.
 
25. This Division in an unreported case, being Civil Appeal No. 66 of 1979, maintained an order of the High Court Division passed on 6.1.77 in Writ Petition No.684 of 1976 whereby the High Court Division in exercise of its writ jurisdiction had declared that the Ad hoc managing committee of a Non-Government College, constituted under P.O. No.117 of 1972, had no legal authority to amalgamate the petitioner's college with that of Munshi Fazlur Rahman College. It was held that such Ad hoc com­mittee was amenable to the writ jurisdiction of the High Court Division having come within the definition of local authority in the General Clauses Act, 1897, as amended by P.O. No.147 of 1972 in as much as under the said amended provision "local authority" now includes amongst others any corporation, or other body or authority con­stituted or established by the Government under any law. Ultimately it was held that the Ad hoc committee of a non Government College appointed by the Government under P.O. No. 117 of 1972 is a body set up under a statute and as such it is amenable to the writ jurisdiction.
 
26. For the reason stated above we find little substance in this appeal. Accordingly it is dismissed without, however, any order as to cost.
 
Ed.