Mahendra Pal Singh v. State of U. P. — 1970 DIGILAW 462 (ALL)

JUDGMENT Yashoda Nandan, J. - These are six petitions under Article 226 of the Constitution. The petitioner in each one of them is either a member of the concerned Cane Co-operative Society or a candidate for election to its Committee of Management. Fresh elections for the constitution of the Managing Committee of the relevant Co-operative Society were scheduled to be held on various dates either towards the end of October, 1970 or in the beginning of November, 1970. In the meanwhile on the 14th October, 1970, the Registrar, Cane-co-operative Societies, Lucknow-hereinafter referred to as the Registrar-who is one of the respondents in all the writ petitions, issued a circular letter purporting to give guidance to the various Cane Co-operative Societies with regard to the scope and implication of Rule 409 of the Rules framed under the U.P. Co-operative Societies Act hereinafter referred to as the Act. The primary relief sought in all these petitions is for an appropriate writ or order quashing the circular letter. Since the only question we propose to decide in these petitions is with regard to the legality and correctness of the view taken by the Registrar regarding the scope of Rule 409 in the impugned letter, we propose to dispose off all these petitions by a common judgment. 2. On the coming into force of the U.P. Co-operative Societies Act, 1965, in order to facilitate the existing bye-laws of the various Cane Co-operative Societies being brought in accord with the new Act and the Rules framed thereunder, the Registrar framed certain model bye-laws. Bye-law No. 158 of these model bye-laws runs as follows : " izca/k desVh] fucU/kd dh iwoZ Lohd`fr ls] vius lnL;ksa ds fuokZpu ds fy;s mifof/k la[;k 47( 1) esa fufnZ"V fuokZfpr lnL;ksa dh la[;k ds cjkcj fu;e la0 409 dks n`f"Vxr j[krs gq;s bl izdkj {ks= (Constituency) fu/kkZfjr djsxh fd izR;sd fuokZpu {ks= dh xzkelgar {ks= (Compact area) esa gks rFkk muds izfrfuf/k;ksa dh la[;k esa vf/kd fHkUurk u gks rkfd fofHkUu {ks=ksa dk mi;qZDr izfrfu/kRo gks ldsA" During the hearing of these petitions, it was stated on behalf of the petitioners that the concerned Co-operative Societies adopted this bye-law without any material alterations. This was not controverted on behalf of the respondents. It has not been asserted that the bye-laws framed by the concerned co-operative Societies were not approved by the Registrar. This was not controverted on behalf of the respondents. It has not been asserted that the bye-laws framed by the concerned co-operative Societies were not approved by the Registrar. The petitions disclose that in accordance with Rule 409 and the bye-law quoted above the Co-operative Societies divided their membership into as many different groups on a territorial basis as there are members to be elected to their Managing Committees. It has not been disputed that these constituencies were carved out with the approval of the Registrar and one member of the Managing Committee has to be elected to represent each constituency. It appears that there was some controversy with regard to the question as to whether the delegates of all the constituencies taken together shall have a right to vote for election of the representative from each constituency or the delegates of the constituency concerned alone will have a right of franchise for electing the member of the Managing Committee from that constituency. 3. By means of the impugned circular letter the Registrar, purporting to interpret Rule 409, has taken the view that Rule 409 does not contemplate "separate electorates for directors representing constituencies of different areas or interests". In his view Rule 409 provides for division of the membership of the Co-operative Societies merely for reservation of seats of members to be elected to the Managing Committee. He has taken the view that the entire delegates of the Societies irrespective of the territorial division or constituency in which they reside shall have one vote for the purpose of election of each member of the Managing Committees. According to him Secs. 20 and 32 (1) (b) of the Act and Rule 105 of the Rules framed thereunder militate against the delegates residing in a particular territorial division or constituency alone having the right to elect a member of the Managing Committee from that constituency. It has been contended by the learned counsel for the petitioners that the view taken by the Registrar with regard to the scope of Rule 409 is unwarranted and elections to the Managing Committees held in accordance with his circular letter would be illegal. 4. As already stated, the Co-operative Societies concerned have in accordance with their bye-law divided their membership into constituencies on a territorial basis. 4. As already stated, the Co-operative Societies concerned have in accordance with their bye-law divided their membership into constituencies on a territorial basis. This has been done in accordance with the procedure prescribed by Rule 409 and the relevant bye-laws of the Co-operative Societies concerned. The sole question to be decided is to whether the delegates of the Society residing in a particular territorial division alone will elect the member of the Managing Committee from that area or the delegates residing in all the constituencies shall take part in the election of each member of the Managing Committee. 5. Rule 409 which deals with the constitution of the Committee of Management runs as follows : "For the purpose of election to the membership of the committee of management, a co-operative society may, with the previous sanction of the Registrar- (i) divide its membership into different groups on territorial or any other rational basis, and (ii) also specify the number or proportion of the members of the committee of management in such a manner that different areas or interests, as the case may be, in the society may, as far as may be, get suitable representation on the committee of management." This rule empowers the Co-operative Society to divide its membership into different groups on territorial or any other rational basis with the previous sanction of the Registrar, specifically for the purpose of election of the members of the committee. It also empowers the society to apportion the membership of the Committee of Management amongst the different groups into which the membership has been divided. The number or proportion of members of the Committee of Management have to be apportioned in such a manner that the different areas or interests into which the membership of the society has been divided may get suitable representation on the Committee of Management. An analysis of this Rule makes it clear that the sole purpose of this rule is to ensure that the various groups into which the membership has been divided whether on a territorial basis or other basis get suitable representation on the Committee of Management. This can be achieved only if the members of a particular group into which the membership has been divided alone take part in the election of the member of the Committee of Management allocated to that group. This can be achieved only if the members of a particular group into which the membership has been divided alone take part in the election of the member of the Committee of Management allocated to that group. If any other view is taken the very purpose of this rule would be defeated. If for instance the membership of the Society is divided into ten separate groups on a territorial basis, one member of the Managing Committee being allocated to each group, if the delegates or members of the other groups are given the right to vote at the election for the member of the Managing Committee from that group the majority of votes will be of members or delegates who are not constituents of that group. In such an eventuality majority of the electors will be from outside that particular group and the member of the committee of Management elected will evidently not be a representative of that group. Thus the view taken by the Registrar with regard to the scope of Rule 409 defeats the very purpose for which the rule was framed. Bye-law No. 158 of the model bye-law, which has been adopted by the Cane Co-operative Societies concerned, gives effect to the purpose of Rule 409 and also leads to the same conclusion. We are thus of the opinion that the Registrar has clearly misconstrued the scope of Rule 409. It has not been denied that the Societies with which we are concerned in these writ petitions have already, with the approval of the Registrar keeping in mind the requirements of Rule 409 and in accordance with their bye-laws, divided their membership on a territorial basis. These territorial groups or constituencies have to elect a representative of their own as contemplated by Rule 409 and the relevant bye-laws. If members or delegates residing outside a particular territorial constituency are permitted to take part at the election held for election of a member of the Managing Committee from that territorial constituency, it will clearly amount to denying the delegates of that constituency the right to elect "their own representative as contemplated by Rule 409. If members or delegates residing outside a particular territorial constituency are permitted to take part at the election held for election of a member of the Managing Committee from that territorial constituency, it will clearly amount to denying the delegates of that constituency the right to elect "their own representative as contemplated by Rule 409. By giving his consent to the division of the membership of the Societies on a territorial basis, the Registrar by necessary implication gave approval to the members or delegaet residing in a particular constituency alone having a right to vote for the representative of that territorial division. It is not open to him, in our opinion, to act in a fashion which may interfere with the members or delegates of a particular constituency electing their own representative to the Committee of Management in accordance with Rule 409. 6. The learned counsel for the State has contended that the interpretation of Rule 409 by the Registrar is correct and justified. In support of his contention he has placed reliance particularly on Section 20 of the Act. The relevant part of Section 20 is as under : "A member of a co-operative society shall, notwithstanding the quantum of his interest in the capital of the society, have one vote, in the affairs of the society : Provided that- ............................................................. ............................................................. ............................................................. (d) the rules or the bye-laws may provide for a group of members or any class of members partaking in the affairs of the society through a delegate or delegates each delegate having one vote." It was urged that the election of each member of the Managing Committee is an affair of the Society and since Section 20 provides that every member of the Cooperative Society shall have one vote in the affairs of the Society each member must have a right to vote at the election of each member of the Managing Committee. It was submitted that this can be effectuated only if irrespective of the division of the membership of the Society into constituencies on a territorial basis the members or the delegates residing in all the constituencies taken together partake in the election of each member of the Committee of Management. It was submitted that this can be effectuated only if irrespective of the division of the membership of the Society into constituencies on a territorial basis the members or the delegates residing in all the constituencies taken together partake in the election of each member of the Committee of Management. It was urged that if a contrary view is taken and the members or the delegates residing within a particular territorial division alone take part in electing a member of the Managing Committee from that area, the procedure will be in conflict with Sec. 20; because this would amount to preventing the delegates or members residing in other constituencies taking part in the affair of electing the member of the Managing Committee from that constituency. We have given careful thought to this contention and find ourselves unable to accept it as sound. Section 29 (1) of the Act is to the effect that : "The management of every co-operative society shall vest in a committee of management constituted in accordance with this Act, the rules and the bye laws, which shall exercise such powers and perform such duties as may be conferred or imposed by this Act, the rules and the bye-laws". The constitution of the Committee of Management is one of the affairs of a Cooperative society. If in accordance with Rule 409 and the bye-law quoted above a Society with the approval of the Registrar divides its membership into different groups on a territorial basis and provides that one member of the Managing Committee shall be elected from each such group, and if the right to vote at the election of that particular member is confined to the delegates or members of that particular territorial group, it is not possible to hold that there would be any inconsistency in this procedure with the requirements of Sec. 20. The member of the Managing Committee elected from that territorial group, exclusively by the members or delegates of that group, shall be their representatives alone and thus the delegates of that group will have a proportionate voice in the constitution of the Committee of Management. If the Committee of Management is constituted by following this procedure it is evident that each member or delegate of the Society has one vote in constituting the Committee of Management which as such is an affair of the Society. If the Committee of Management is constituted by following this procedure it is evident that each member or delegate of the Society has one vote in constituting the Committee of Management which as such is an affair of the Society. We are of the opinion that Section 20 of the Act does not so much emphasise the number of votes that each member has but the concept of equality of votes of the members, irrespective of their share-holdings, to effectuate the democratic constitution of the Society as contemplated by Section 4 (e) of the Act. 7. Reliance was also placed by the learned counsel for the State on Section 32 (1) (b) of the Act which is as under : "A meeting of the general body of a co-operative society (hereinafter referred to as the annual general meeting) shall be held, once in a co-operative year within such period as may be prescribed, for the purposes of- ..................... ..................... (b) election, if any, of the members of the committee of management in accordance with the provisions of the rules and of the bye-laws of the society." It was submitted that this provision contemplates that each member or delegate of the Society entitled to take part at the annual general meeting has a right to take part in the election of each member of the Committee of Management. We find no force in this contention. At the annual general meeting the election of the members of the Committee of Management has to he held in accordance with the provisions of the rules and the bye-laws of the Society. If the Rules and the bye-laws so permit there is no difficulty in the entire membership of the Society being divided into constituencies on a territorial basis or any other rational basis and the members or delegates who are constituents of that particular constituency alone having a right to elect a representative of their own. 8. Though the learned counsel for the State did not place reliance on Rule 105 in support of the view taken by the Registrar, the Registrar has in his circular letter relied upon it. 8. Though the learned counsel for the State did not place reliance on Rule 105 in support of the view taken by the Registrar, the Registrar has in his circular letter relied upon it. The registrar seems to have been of the view that since the election of the members of the Managing Committee has to held at the annual general meeting it has to be by a resolution passed by it majority of votes of all the members present, and if the delegates who are constituents of a particular group alone have a right to vote for electing a member of the Managing Committee of that group, Rule 105 would be violated. Rule 105 is in Chapter VIII which relates to "Meeting" but Chapter XXIX provides a set of special rules relating to elections. In case of conflict, the special rules in Chapter XXIX will prevail over the general Rule 105. 9. Rule 105 requires that all matters before a meeting shall be decided in the form of resolution passed by a majority of votes of the members present unless a special majority is required under the provisions of the Act, rules or the bye-laws of the Society. Ostensibly, this rule has in mind matters which are to be openly debated and decided by passing a resolution. The question is if elections to the Managing Committee is such a matter. Rule 422 (in Chapter XXIX) provides that the Presiding Officer shall arrange a poll if there are more than one candidates for any office. Rule 423 says that voting shall be by secret ballot. Under Rule 426 the presiding Officer is to count the number of votes secured by each candidate and announce the result as soon as the counting is over. The results of the election are to be recorded in the Minute Book of the Society. A list containing the names of the candidates declared elected is on the same date hung up by the Secretary of the Society on the notice board of the Society. These rules show that the elections are not held by passing a resolution. Rule 105 is inapplicable to the holding of the elections. 10. Civil Misc. Writs Nos. 5334, 5278, 5299, 5275 and 5277 of 1970 are hereby allowed and the impugned circular letter of the Registrar dated 14th October, 1970, is quashed. These rules show that the elections are not held by passing a resolution. Rule 105 is inapplicable to the holding of the elections. 10. Civil Misc. Writs Nos. 5334, 5278, 5299, 5275 and 5277 of 1970 are hereby allowed and the impugned circular letter of the Registrar dated 14th October, 1970, is quashed. The opposite parties are directed to hold the elections of the Managing committee of the concerned Co-operative Societies by ignoring the impugned circular letter. In the circumstances of the case, parties shall bear their own costs. 11. As far as Civil Misc. Writ No. 5276 of 1970 is concerned, it appears that the election for membership of the Managing Committee of the Muzaffarnagar Sahkari Ganna Samiti is being held in accordance with our interpretation of Rule 409. From the counter-affidavit it appears that out of 12 members to be elected to the Managing Committee, 9 have already been elected unanimously. At the elections of the Managing Committee of this society effect was not given to the impugned circular letter of the Registrar. We have no doubt that the remaining seats of the Committee of Management will be filled in by elections to be held in accordance with this judgment. The elections that have already been held have not been challenged by means of this writ petition. The prayer made in this petition is that this Hon'ble Court may be pleased to issue an order, direction or writ directing the opposite parties to hold the elections for the membership of the Board of Management of the Samiti in accordance with the order of the Cane Commissioner dated 14th October, 1970. We have already held that the circular letter issued by the Registrar is not in accordance with the law. This relief must consequently be refused and Civil Misc. Writ No. 5276 of 1970 is hereby dismissed. In the circumstances of the case, parties shall bear their own costs. The interim stay order dated 23-10-1970 is hereby vacated. 12. Apart from the legality or otherwise of the impugned circular letter dated 14th October, 1970, we have not allowed any other point to be raised. If the elections already held are open to challenge on any other ground the petitioners may do so by taking recourse to arbitration proceedings under Section 70 of the Act. 12. Apart from the legality or otherwise of the impugned circular letter dated 14th October, 1970, we have not allowed any other point to be raised. If the elections already held are open to challenge on any other ground the petitioners may do so by taking recourse to arbitration proceedings under Section 70 of the Act. Sec. 70 (2) (d) of the Act clearly permits a dispute relating to the election of office-bearers being challenged. Sec. 2(o) makes it clear that a member of the Committee of Management is an "officer of a co-operative society'. If a member of the Managing Committee is an officer of the Co-operative Society within the meaning of the Act, there can be no manner of doubt that he is an office-bearer for the purpose of Section 70 (2) (d).