Patna High Court
Arun Kumar SinghversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- ANIL KUMAR SINHA
Holding
The vacancy arose when more than half of the Board's term remained, so the second proviso of Section 14(9) of the Bihar Co‑operative Societies Act, 1935 applies, rendering the Board's nomination void and obligating the Bihar State Election Authority to hold a by‑election.
Summary
The petitioner, Arun Kumar Singh, challenged the Bihar State Election Authority's initiation of a by‑election to fill the Chairman vacancy of Motihari District Central Co‑operative Bank, arguing that the vacancy arose when more than half of the Board's five‑year term remained, thereby invoking the first proviso of Section 14(9) of the Bihar Co‑operative Societies Act, 1935, which permits the Board to fill the vacancy by nomination. The Board, however, had resolved to hold a by‑election and the Election Authority began preparing the voters' list on 22 May 2025, before the half‑term expired on 12 October 2025. The Court examined the statutory scheme, noting that the decisive factor is the date of vacancy, not the timing of the election process, and held that the second proviso of Section 14(9) applied, mandating a by‑election. It rejected the petitioner's arguments about the 2013 Amendment Act's constitutionality and the Board's nomination power. Consequently, the Court declared the Board's nomination void and ordered the Election Authority to conduct the by‑election as per the schedule dated 12 December 2025. The writ petition was disposed.
Issues considered
- The applicability of the first versus second proviso of Section 14(9) of the Bihar Co‑operative Societies Act, 1935 to a vacancy arising on 5 November 2024.
- Whether the Bihar State Election Authority was required to hold a by‑election despite the Board's later nomination of the petitioner.
- Whether the Bihar Co‑operative Societies (Amendment) Act, 2013, grounded on the 97th Constitutional Amendment, is ultra‑vires and thus inapplicable.
- Whether the petitioner's request to refer the matter to the Registrar under Section 48 of the 1935 Act is maintainable.
Legislation cited
Subjects
- Co-operative societies
- Vacancy
- By‑election
- Section 14(9)
- Nomination
- Election Authority
- Writ petition
- Ultra vires
- Constitutional amendment
- Statutory interpretation
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.18676 of 2025
======================================================
Arun Kumar Singh son of Shiv Shankar Singh, Resident of Village- Siripur,
Police Station - Ghorasahan, District- East Chamaparan at Motihari.
... ... Petitioner/s
Versus
1. The State of Bihar through the Chief Secretary, Department of Cooperative
Society, Govt. of Bihar, Patna.
2. The Principal Secretary, Cooperative Department, New Secretariat, Bihar,
Patna.
3. The Registrar, Cooperative Societies, Bihar, Patna.
4. The Bihar State Election Authority, Harding Road, Patna through its
Secretary.
5. The District Magistrate, East Champaran, at Motihari.
6. The District Cooperative Officer, East Champaran, at Motihari.
7. The Motihari Central Cooperative Bank, Motihari through its Managing
Director.
8. The Managing Director, the Motihari Central Cooperative Bank, Motihari.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Y. V. Giri, Sr. Adv.
Mr.Sanjay Kumar
For the State : Mr. Birju Prasad, GP 13
Ms. Shweta Anand, AC to GP 13
For respondent no. 4 : Mr. Mukesh Kumar Thakur
For the intervenor : Mr. Vikash Kumar Singh
For the Bank : Mr. Bindhyachal Rai
======================================================
CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
ORAL ORDER
6 12-01-2026 The present writ petition has been filed for quashing
the Letter No. 2824, dated 10.10.2025, issued by the Joint
Secretary, Bihar State Election Authority, whereby the process
of preparation of voters’ list for election to the post of Chairman
of Motihari District Central Co-operative Bank Ltd. was
initiated and further prayed for restraining the respondents from
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proceeding with the election process.
2. I. A. No. 01 of 2025 has been filed by the petitioner
seeking amendment in the relief portion of the main writ
petition, which are as follow:
(i) For quashing Memo No. 3176, dated 10.12.2025,
issued by the Joint Secretary, Bihar State Election Authority and
for restraining the Bihar State Election Authority from
proceeding in terms of the impugned notification and to act in
accordance with the resolution of the Board of Directors, dated
25.11.2025, passed vide Proposal No. 12, whereby the post of
Chairman has been filled by nomination by Board of Directors.
(ii) It is further prayed for directing the Bihar State
Election Authority to refer the matter under Section 48 of the
Bihar Co-operative Societies Act, 1935, to the Registrar, Co-
operative Societies, regarding the alleged vacancy of the post of
Chairman of Motihari District Central Co-operative Bank Ltd.
3. Considering the nature of prayer made in the
interlocutory application, the same is allowed and the prayer
will form part of the main writ petition.
4. The factual matrix of the case, in brief, is that, the
election to the Managing Committee of the Motihari District
Central Co-operative Bank Ltd. (hereinafter referred to as ‘the
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Central Co-operative Bank’) was held on 13.04.2023 for
statutory tenure of five years, which was to be completed on
13.04.2028. In the said election, Sri Sudarshan Prasad Singh
was duly elected as the Chairman of the Managing Committee.
Unfortunately, the elected Chairman died on 05.11.2024, i.e. just
after one and a half years of his election as the Chairman of the
Managing Committee. His death resulted in creation of vacancy
of the Chairman of the Managing Committee when more than
half of the original tenure of the Board was still remaining.
5. Thereafter, the Board of Directors of the Central
Co-operative Bank, in its meeting held on 18.12.2024, vide
Resolution No. 8, unanimously resolved to fill up the vacant
post of Chairman of the Managing Committee through by-
election invoking the provisions of second proviso to Section
14 (9) of the Bihar Co-operative Societies Act, 1935 (in short,
‘the 1935 Act’) and authorized the Managing Director to take all
necessary steps in that regard.
6. However, despite such authorization, the Managing
Director forwarded the said proposal, along with the relevant
records, to the District Co-operative Officer -cum- Competent
Authority, East Champaran, Motihari, after expiry of four
months, on 19.04.2025, vide Letter No. 52.
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7. The expenses for the election were thereafter
deposited in accordance with the provisions of the Bihar Co-
operative Societies Rules, 1959 (in short, ‘the 1959 Rules’), and
the District Co-operative Officer forwarded the proposal for
holding the by-election to the Bihar State Election Authority on
24.04.2025.
8. Upon receipt of the said proposal, the Joint
Secretary, Bihar State Election Authority issued notification,
vide Letter No. 1815, dated 22.05.2025, for preparation of the
voters’ list and fixed 16.06.2025 as the date for final publication
of the voters’ list on the basis of cut-off date 30.04.2025.
9. After publication of the final voters’ list, a writ
petition, bearing C.W.J.C. No. 10116 of 2025 was filed before
this Court challenging the said voters’ list. The writ petition was
disposed, vide order, dated 08.07.2025, granting liberty to the
petitioners therein to file representation before the Bihar State
Election Authority and directing the Bihar State Election
Authority to decide the same by a reasoned and speaking order
within three months from the date of filing of the representation.
10. Pursuant to the directions of this Court, the Bihar
State Election Authority passed a reasoned and speaking order,
vide Memo No. 2816, dated 09.10.2025. Since the statutory
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period of 120 days had already expired while complying the
order of this Court, dated 08.07.2025, the Bihar State Election
Authority issued fresh instructions/notification, vide Letter No.
2824, dated 10.10.2025, whereby a new cut-off date of
30.09.2025 was fixed for preparation of the voters’ list and
18.11.2025 was fixed as the date for final publication of the
voters’ list.
11. Subsequently, on 12.10.2025, the half tenure of
the Board, i.e. two and a half years, expired. It is pertinent to
mention here that the half tenure of the Board expired after
notification dated 10.10.2025. The Managing Director, vide
Letter No. 711, dated 15.11.2025, convened a meeting of the
Board of Directors, scheduled to be held on 25.11.2025. The
said meeting was convened with ten agendas; however, none of
the agendas pertains to the nomination of the Chairman of the
Central Co-operative Bank. In the meeting held on 25.11.2025,
the petitioner was nominated for holding the post of Chairman,
recording in the minutes that since the by-election of the vacant
post of Chairman could not be held till 12.10.2025, the Board
decided to make such nomination of the petitioner in exercise of
the powers conferred under the first proviso to Section 14 (9) of
the 1935 Act and in the light of the Clause 49 (B) [sic., 36 (a)]
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of the Bye-laws of the Motihari Central Co-operative Bank Ltd.
12. The first proviso to Section 14 (9) of the 1935 Act
provides that if the casual vacancy arises in the Board and the
remaining tenure of the Board is less than one-half of its
original term, the Board may fill up such casual vacancy from
the members belonging to the same class.
13. The Bihar State Election Authority vide
Notification No. 3205, dated 12.12.2025, announced the
election programme for various stages. As per the said
notification, the dates for filing of nomination papers were fixed
as 03.01.2026 and 05.01.2026; the dates for scrutiny of
nomination papers were fixed on 06.01.2026 and 07.01.2026;
the date for withdrawal of candidature was fixed on 09.01.2026;
and the date of polling and counting on 16.01.2026.
14. Learned Senior Counsel appearing on behalf of
the petitioner argued that the Bihar State Election Authority
failed to conduct the by-election to the post of Chairman within
a reasonable time after the vacancy arose due to the death of the
Chairman. In such circumstances, the statutory mandate
contained in the first proviso to Section 14 (9) of the 1935 Act
stood automatically attracted, which empowers the Board of
Directors to fill up the casual vacancy by nomination from
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amongst the same class of members.
15. Learned Senior Counsel further submits that in
view of the aforesaid statutory position, the Board of Directors,
in its duly convened meeting held on 25.11.2025, lawfully
exercised its jurisdiction and unanimously nominated the
petitioner to hold the office of Chairman of the Central Co-
operative Bank. The said nomination was approved by all the
members present and was formally communicated to the Bihar
State Election Authority, vide Letter No. 3649, dated
13.12.2025.
16. It is next submitted that the said statutory power is
also reinforced by the Central Co-operative Bank’s own bye-
laws. Clause 36(a) of the Bye-laws specifically provides that
whenever any vacancy occurs in the office of an office bearer,
the Board of Directors shall fill up such vacancy from amongst
themselves and the person, so elected, shall hold the office till
the next general election.
17. It is further contended that the cause of action for
exercise of power under Section 14 (9) of the 1935 Act does not
arise from the mere date of vacancy, but from the stage when the
vacancy is required to be filled up. Once more than half of the
original term of the Board had expired, the statutory regime
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stood altered and by operation of law, the power to fill up the
casual vacancy stood vested exclusively in the Board of
Directors under the first proviso to Section 14 (9) of the 1935
Act.
18. It is urged that in the present case, even though the
vacancy arose on 05.11.2024, the Bihar State Election Authority
admittedly failed to complete the by-election before the expiry
of half of the term on 12.10.2025. Consequently, after the said
cut-off date, the Board of Directors alone was competent in law
to fill up the vacancy.
19. When the Board of Directors, in its meeting, dated
25.11.2025, nominated the petitioner as the Chairman, it did so
in lawful exercise of the jurisdiction, which had accrued into it
by virtue of the expiry of more than half of the original term.
Therefore, once the Board had already exercised its lawful
jurisdiction and filled the vacancy strictly in accordance with
the 1935 Act and the Bye-laws of the Central Co-operative
Bank, no vacancy remained on the post of Chairman.
Consequently, the election notification, dated 10.12.2025, stood
divested of any legal foundation and was rendered non-est in the
eye of law.
20. An alternative argument has been made by learned
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Senior Counsel that the Bihar Co-operative Societies
(Amendment) Act, 2013, was enacted expressly in pursuance of
the Constitution (Ninety Seventh Amendment) Act, 2011. This
legislative intent is clearly manifested from the preamble of the
Amendment Act itself, which records that the amendments were
being carried out in pursuance of the Constitution (Ninety
Seventh Amendment) Act, 2011.
21. Since the Ninety Seventh Constitutional
Amendment, insofar as it relates to Co-operative Societies, has
been declared unconstitutional/ ultra vires for want of
ratification by the States. Consequently, the very constitutional
foundation on the basis of which the Bihar Co-operative
Societies (Amendment) Act, 2013 was enacted stands
obliterated. [See, Union of India v. Rajendra N. Shah and
Another, reported in (2022) 19 SCC 520).
22. Since the 2013 Amendment Act is expressly
rooted in the 97th Constitutional Amendment, the preamble and
the amendments introduced thereby, including the substituted
scheme of Section 14 (9) of the 1935 Act and its proviso, lose its
legal substratum and cannot be pressed into service.
23. In such a situation, Clause 36(a) of the Bye-laws
of the Central Co-operative Bank will survive, which provides
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that whenever any vacancy occurs in the office of an office
bearer, the Board of Directors shall fill up such vacancy from
amongst themselves and the person so elected shall hold office
till the next general election, independently governs the issue
and fully survives.
24. Lastly, it has been argued that even assuming any
doubt or dispute subsisted in respect of the validity of the
nomination, the Bihar State Election Authority was mandatorily
required to refer the matter to the Registrar under Section 48 of
the 1935 Act. Instead of adopting the statutory course, the Bihar
State Election Authority has arbitrarily proceeded to notify the
election, which is patently illegal, without jurisdiction and in
clear violation of the statutory scheme.
25. Learned Senior Counsel relies upon the decisions
of the Hon’ble Supreme Court, in the cases of Union Territory
of Ladakh and Others v. Jammu and Kashmir National
Conference and Another, reported in 2023 SCC OnLine SC
1140 and Dinesh Prasad Yadav v. State of Bihar and others,
reported in 1995 Supp (1) SCC 340.
26. On the other hand, learned Counsel for the
respondent-Bihar State Election Authority argued that the
present writ application is not maintainable and submits that it is
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settled principle of law that once the election process has
commenced, the same must be permitted to reach its logical
conclusion and any grievance in respect thereof can be agitated
only by way of an election petition.
27. It has further been argued that the vacancy on the
post of Chairman arose on 05.11.2024, at the point of time when
more than half of the original statutory tenure of the Board was
still remaining. The Board, in its meeting, dated 18.12.2024,
itself unanimously resolved to have the by-election conducted
and duly authorized the Managing Director to take all necessary
steps in that regard. Upon receipt of the said proposal on
24.04.2025, the Bihar State Election Authority initiated the
process for preparation of the voters’ list on 22.05.2025, which
was well within the period when more than half of the tenure of
the Board was subsisting.
28. It has further been submitted that merely because
the election process could not be completed before the expiry of
half of the tenure on 12.10.2025, the same does not divest the
Bihar State Election Authority of the jurisdiction which had
already validly accrued under the second proviso to Section 14
(9) of the 1935 Act. Therefore, the resolution of the Board,
dated 25.11.2025, nominating the petitioner as the Chairman is
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void ab initio, inasmuch as the vacancy had admittedly arisen
prior to the half-term stage and, therefore, the first proviso to
Section 14 (9) of the 1935 Act is wholly inapplicable to the facts
of the present case.
29. The petitioner is deliberately attempting to stall
the election process so as to continue on the post of Chairman
without any democratic mandate. It has further been submitted
that the Notification No. 3205, dated 12.12.2025, has not been
challenged either in this writ application or in I .A No. 1 of
2025.
30. In support of his submission, learned Counsel
relied on the decisions of the Hon’ble Supreme Court, in the
cases of Shri Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakari Dugdha Utpadak Sanstha and another v.
State of Maharashtra and others, reported in (2001) 8 SCC
509 and Avtar Singh Hit v. Delhi Sikh Gurdwara
Management Committee and Others, reported in (2006) 8
SCC 487.
31. Learned Counsel for the intervenor submits that
pursuant to the notification, dated 10.12.2025, the intervenor has
submitted his nomination for the post of Chairman, along with
some other persons. The intervenor is the elected Chairman of
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Sapahi Primary Agricultural Credit Society (PACS) and is an
eligible candidate to contest the election for the post of
Chairman of the Central Co-operative Bank.
32. It has been contended that the vacancy on the post
of Chairman arose on 05.11.2024 due to the death of the elected
Chairman, which was much prior to the expiry of half of the
original tenure of the Board. In view of the clear and
unambiguous language of the second proviso to Section 14 (9)
of the 1935 Act, it was the statutory obligation of the Bihar State
Election Authority to fill up the said vacancy by conducting a
by-election.
33. It has further been submitted that the Bihar State
Election Authority had already initiated the election process on
22.05.2025 by issuing directions for preparation of the voters’
list, which is an integral and inseparable part of the election
process. The first proviso to Section 14 (9) of the 1935 Act
could have been attracted only if the casual vacancy had arisen
after the expiry of half of the original tenure of the Board.
Admittedly, in the present case, the vacancy arose on
05.11.2024, i.e., much prior to 12.10.2025, and, therefore, the
first proviso to Section 14 (9) of the 1935 Act has no application
whatsoever.
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34. The resolution of the Board, dated 25.11.2025,
nominating the petitioner as the Chairman is nothing but a
colourable exercise of power, devised solely to defeat and
frustrate the on-going election process. The said nomination is
illegal also on account of procedural impropriety inasmuch as
the agendas for the meeting of the Board, dated 15.11.2025, did
not contain any proposal relating to nomination of the
Chairman, rendering the decision vitiated.
35. It is lastly urged that once the election process had
already commenced, this Court is barred from interfering with
the same in view of Section 11 of the Bihar State Election
Authority Act, 2008, coupled with the consistent law laid down
by the Hon’ble Supreme Court that Courts ought not to interdict
elections at an intermediate stage.
36. In support of his argument, learned Counsel relied
on the decision of the Supreme Court, in the case of Election
Commission of India v. Shivaji and Others (AIR 1988 SC
61).
37. I have heard learned Counsel for the parties
concerned and have perused the material available on records.
38. It is an admitted and undisputed fact that the
vacancy on the post of Chairman arose on 05.11.2024, at the
Patna High Court CWJC No.18676 of 2025(6) dt.12-01-2026
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point of time when more than half of the original statutory
tenure of the Board was still remaining. The Board, in its
meeting, dated 18.12.2024, unanimously resolved to have the
said vacancy filled up through a by-election and authorized
initiation of the statutory process. It is further undisputed that
the Bihar State Election Authority had already initiated the
election process on 22.05.2025 by issuing instructions for
preparation of the voters’ list, which is an integral and
inseparable component of the election process. The half-term of
the Board expired subsequently on 12.10.2025, i.e., after the
election process had already commenced.
39. The preparation of the electoral roll is the
intermediate stage in the process of election and as per the
decision of the Supreme Court, in the case of Shri Sant
Sadguru Janardan Swami (Moingiri Maharaj) Sahakari
Dugdha Utpadak Sanstha (supra), the election process is set in
motion by preparation of the electoral roll.
40. Section 14 (9) of the 1935 Act, 1935, is quoted
herein below:
“14 (9) Notwithstanding anything
contained in any provision of rules or the Bye-laws
of any Co-operative Society the term of office of
elected members of the Board and its Office-
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bearers shall be five years from the date of election
and the term of Office-bearers shall be co-terminus
with the term of the Board:
Provided that the Board may fill a casual
vacancy on the Board by nomination out of the
same class of members in respect of which the
casual vacancy has arisen, if the term of the Board
is less than half of its original term;
Provided further that if the term of the
Board remains for more than half of its original
term and if any vacancy arises for elected members
or Office-bearers for any reason whatsoever, the
Bihar State Election Authority shall fill the vacancy
for remaining period by holding bye-election.”
41. The applicability of the two proviso to Section 14
(9) of the 1935 Act is to be determined with reference to the
date of vacancy and the commencement of the statutory election
process and not on the fortuitous circumstance of delay in
completion thereof. A plain reading of the provision leaves no
iota of doubt that the decisive factor is the point of time when
the vacancy arose.
42. In the facts of the present case, the process of by-
election started after creation of the vacancy and preparation of
the electoral roll a per the second proviso to Section 14 (9) of
the 135 Act. If a vacancy arose when more than half of the
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tenure of the Board remains, filling up of such vacancy by way
of by-election is mandated in the second proviso to Section 14
(9) of the 1935 Act, whereas nomination is permissible only if
the vacancy arises after expiry of half of the original tenure of
the Board.
43. In the present case, the vacancy arose on
05.11.2024, when more than two and a half years of the tenure
of the Board was still remaining. Consequently, on the very date
of creation of the vacancy, the second proviso to Section 14 (9)
of the 1935 Act stood attracted, mandating that the vacancy be
filled through by-election conducted by the Bihar State Election
Authority. The Board of Directors immediately after creation of
vacancy decided to fill it through by-election in its meeting,
dated 18.12.2024. The subsequent expiry of half of the tenure of
the Board on 12.10.2025 does not alter the legal position of the
vacancy already created.
44. The decision relied upon by learned Senior
Counsel for the petition, on Dinesh Prasad Yadav (supra) is not
applicable in the facts of the present case. The alternative
argument advanced on behalf of the petitioner is also not
acceptable for the simple reason that the provisions of Section
14 (9) of the 1935 Act has not been declared ultra vires by any
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court of law and the same remains in the statute book duly
enacted by the competent Legislature.
45. The acceptance of the argument advanced on
behalf of the petitioner would lead to an anomalous situation
where a statutory obligation of holding by-election could be
defeated merely by administrative delay, which is wholly
impermissible in law.
46. Once the election process had commenced on
22.05.2025, the Board became functus officio to the extent of
filling up the vacancy on the post of Chairman by way of
nomination. Consequently, the nomination of the petitioner as
the Chairman pursuant to the resolution, dated 25.11.2025, is
void ab initio and non est in the eyes of law.
47. The prayer of the petitioner for referring the
matter to the Registrar under Section 48 of the 1935 Act is also
not acceptable in the facts of the present case. The said
provision cannot be invoked as a device to interdict, stall or
derail a statutory election process once it has lawfully
commenced. Therefore, no direction for reference under Section
48 of the 1935 Act is either warranted or permissible in the facts
of the present case.
48. In view of the foregoing discussion, this Court
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comes to the conclusion that the vacancy in the office of
Chairman arose on 05.11.2024 at the time when more than half
of the statutory tenure of the Board was still remaining and,
therefore, the second proviso to Section 14 (9) of the 1935 Act
squarely applies. Once the statutory election process had
lawfully been set in motion, the same could not have been
nullified or frustrated by a subsequent resolution of the Board,
dated 25.11.2025, nominating the petitioner as the Chairman,
vide Resolution dated 25.11.2025, which, in the opinion of this
Court, is void ab initio and non est.
49. The Bihar State Election Authority has acted
strictly in accordance with the statutory mandate for holding by-
election and any judicial interference at this stage would be
contrary to law. The State Election Authority is directed to hold
the election as per election schedule notified on 12.12.2025.
50. With the aforesaid declaration, direction and
observation, this writ application is disposed.
AFR/ (Anil Kumar Sinha, J.)
Prabhakar Anand/-
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