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1983 DIGILAW 279 (BOM)

Kisan Govindrao Walke v. State of Maharashtra and another

1983-10-06

P.S.SHAH, V.A.MOHTA

body1983
JUDGMENT - Shah J. - This petition under Article 226 of the Constitution raises a question about the interpretation of sub-section (5) of section 73-A of the Maharashtra Co-operative Societies Act, 1960 (hereinafter referred to as “the Act”). 2. The petitioner is the Chairman of the Parseoni Panchayat Samiti Kharedi Vikri Co-operative Society. Prior to May 1, 1981, the area of the operation of the Society was the area consisting of the block, namely, the area of the operation of the Parseoni Panchayat Samiti. By a notification issued under section 4 of the Maharashtra Land Revenue Code, 1966, the Government converted the said block of the Parseoni Panchayat Samiti into a separate taluka with effect from May 1, 1981. The petitioner was first elected on November 27, 1.973 as Chairman of the Society for a period of 3 years.. It Appeared that the period of the Managing Committee of the Society was extended by the Registrar from time to time and no elections of the Chairman were held after the formation of the independent taluka. The petitioner, therefore, continued to be the Chairman of the Society even after the expiry of the initial term of 3 years for which he was elected in the year 1973. The elections of the office bearers were held on May 13, 1981. In that election, the petitioner was re-elected as the Chairman of the Society, for a further period of 3 years. As a result of the conversion of the block into a Taluka, the area of operation of the Society extended to the Taluka and it became a Society failing in category III of sub-section (2) of section 73-A, as the Society is a specified Co-operative Society to which the provisions of section 73-A are applicable. On August 20, 1983, the Assistant Registrar of the Co-operative Societies passed an order declaring that sincenthe petitioner had held the office of the Chairman for a continuous period of more than 6 years, he had incurred a disqualification under sub-section (5) of section 73-A of the Act. It is this order of the Assistant Registrar which is the subject-matter of challenge before us. 3. It is not disputed that the Society is a specified society to which the provisions of section 73-A are applicable. It is this order of the Assistant Registrar which is the subject-matter of challenge before us. 3. It is not disputed that the Society is a specified society to which the provisions of section 73-A are applicable. Sub-section (1) of section 73-A, inter alia, provides that for the purposes of this section, “a designated officer” means the Chairman and the President, and includes any other officer of the Society as may be declared by the State Government, by notification in the Official Gazette, to be a designated officer, but does not include any officer appointed or nominated by the State Government or by the Registrar. It is, therefore, clear that the petitioner being the Chairman of the Society is a designated officer for the purposes of section 73-A. Sub-section (2) of section 73-A classifies the Societies in three different categories and provides as under :- “73A (2). No person shall, at the same time, be or continue to be, a designated officer of more than one society falling in Category I or Category II or Category III of the categories mentioned below; and shall not be or continue to be a designated officer in more than two societies in the aggregate in the three categories : - Category I-Societies, the area of operation of which extends to the whole of the State. Category II.-Societies, the area of operation of which does not extend to the whole of the State- (a) but extends to Greater Bombay and the authorised share capital of which is more than Rs. 10 lakhs; or (b) but extends to one or more districts; or (c) is less than a district and the authorised share capital of which is more than Rs. 10 lakhs. Category III-Societies, the area of operation of which does not extend to the whole of a district but extends to one or more talukas, or the authorised share capital of which is not more than Rs. 10 lakhs but is not less than Rs. 5 lakhs.” The Society with which we are concerned is, admittedly, a Society which has authorised capital of Rs. 50,000, that is, less than Rs. 5 lakhs. Since the block was converted as an independent taluka on May 1, 1981, it is a Society the area of operation of which extends to one taluka. 5 lakhs.” The Society with which we are concerned is, admittedly, a Society which has authorised capital of Rs. 50,000, that is, less than Rs. 5 lakhs. Since the block was converted as an independent taluka on May 1, 1981, it is a Society the area of operation of which extends to one taluka. Therefore, with effect from May 1, 1981, the Society clearly falls within the Category III, as provided in sub-section (2) of section 73-A. The Society obviously does not fall in the first two categories referred to in sub-section (2) of settion 73-A. Prior to May 1, 1981 it did not answer the description of category 111 as well, since its area of operation extends only to a block i.e. a part of a taluka and its authorised capital is less than Rs. 5 lakhs. However, the position has changed with effect from May 1, 1981 and since then it is a Society failing in Category III. 4. Now we may turn our attention to the provisions of sub-section (5) of section 73-A under which the petitioner is said to have incurred the dis qualification. Sub-section (5) in so far as is material runs thus : “73A{5). No person shall be, or shall continue to be, a designated officer of any society of any of the categories referred to in sub-section (2) for a consecutive period of more than six years, and at the expiration of that period any such person shall cease to be a designated officer of that society, and shall not be eligible for being re-elected or re-appointed as a designated officer, until a period of three years has elapsed after the expiry of the aforesaid period of six. years. Explanation-For the purposes of this sub-section- (a) in calculating the consecutive period of six years in office, any period for such the person concerned may have been such officer, before the commencement of the Maharashtra Co-operative Societies (Second Amendment) Act, 1969, shall be ignored; * * * 5. Mr. Kaptan, the learned counsel appearing for the petitioner, urged two contentions before us. Firstly, he contended that the Society did not answer the description of Category III till May 1, 1981 and, therefore, the period prior to that date during which he was a Chairman of the Society could not be taken” into consideration for the purposes of disqualification. Mr. Kaptan, the learned counsel appearing for the petitioner, urged two contentions before us. Firstly, he contended that the Society did not answer the description of Category III till May 1, 1981 and, therefore, the period prior to that date during which he was a Chairman of the Society could not be taken” into consideration for the purposes of disqualification. Secondly, he contended that the petitioner ceased to be a designated officer between November 27, 1976 and May 1, 1981, since there were no elections during this period and the old Managing Committee continued to exist only by virtue of the orders passed by the Registrar under section 77A extending the period of the Body from time to time till fresh elections were held on May 13, 1981. According to him, sub-section (1) itself provides that it shall exclude an officer appointed or nominated by the State Government or Registrar from the definition of designated officer and, therefore, excluding the said period, the petitioner cannot be said to have completed a tenure of six years' office as Chairman of the Society. 6. We would take up for consideration the first contention, namely, that the Society was not a Society of Category III at any time prior to May 1, 1981 and, therefore, there is no question of the petitioner completing the tenure of six years as a Chairman of the Society prior to May 13, 1981 when the impugned order was passed. The question is whether on a true construc tion of sub-section (5) the period of the existence of the Society prior to its achieving the status of Category III can be taken into consideration so as to disqualify the Chairman of such a Society. The explanation (a) to sub section (5) clearly shows that in calculating the consecutive period of six years in office, any period for which the person concerned may have been a designated officer, before the commencement of the Maharashtra Co-opera tive Societies (Second Amendment) Act, 1969 has to be ignored. Now, it must be mentioned that section 73A was inserted in the Act by the said Maharashtra Co-operative Societies (Second Amendment) Act, 1969 which came into force on 1st; July 1971. Now, it must be mentioned that section 73A was inserted in the Act by the said Maharashtra Co-operative Societies (Second Amendment) Act, 1969 which came into force on 1st; July 1971. It is, therefore,, apparent that the legislative intent to make the operation of sub-section (5) prospective to the extent that it is operative only from the date of coming into force of the Amendment Act is clear and unambiguous. However, we must confess that the interpretation of the main provision of sub-section (5) does present some difficulty. 7. In order to attract the applicability of sub-section (5), it must be shown that the person has been “a designated officer of any society of any of the categories referred to in sub-section (2) for a consecutive period of more than 6-years.” Id this case, it is not disputed that the society is a society of Category III referred to in sub-section (2) since May 1, 1981. The petitioner has been a Chairman of the society continuously for a period of 6 years prior to Aagust 20, 1983 on which date the Assistant Registrar passed the impugned order. According to the learned counsel for the petitioner, in order that the disqualification should be incurred it is not enough that the person has been a designated officer for a continuous period of 6 years, but it must also be shown that the society of which he is the designated officer is a society of one of the categories referred to in sub-section (2) during his tenure of six years. If for a part of such period of six years, the Society was not a society falling in any of the three categories, the person cannot be said to have incurred the disqualification. On the other hand it was urged by Mr. Sambre, learned Government Pleader that language of sub-section (5) does not admit of such interpretation. He submitted that all that is required to be shown is that at the point of time when disability is said to have been incurred the society must answer the discription of a society falling in one of the three categories referred to in sub-section (2) regardless of the fact that for a part of the statutory period of six years the society did not fall in that category. In other words, according to him, if the person concerned had a continuous tenure of six years, though a part of the period was before” the society attained the status of a society of Category III, he incurs a disqualification. 8. It is well settled that where the language of a statutory provision is clear and unambiguous, the Statement of Objects and Reasons cannot be utilised for interpreting the provisions. However, where the language of the provision, as in the present case, is not clear, the Statement of Objects and Reasons can be used for a limited purpose of understanding the background of antecedent state of affairs leading upto the legislation, the situation that existed, the evil sought to be remedied and the cure that is tried to be pro vided. The Objects and Reasons of Bill No. 10 of 1969 which came to be enacted as Maharashtra Act No. 27 of 1969 is to be found in Part V of the Maharashtra Government Gazette dated 27th March 1969 at page 102. The relevant clause reads: “Clause 12 :In the co-operative movement in this State a group of persons have been holding the key positions in several important co-opera-Jive institutions simultaneously and for long periods, with the result that new leadership is not being built up to the desired extent and the movement is tending to become a close preserve of a few individuals. To check this unhealthy tendency and to give a more democratic character to the co-operative institutions, it is necessary to prescribe certain limitations is the statute itself. Accordingly, it has been proposed that a person should not hold an important office like Chairman or President in more than one society at each of the three levels, viz. Apex, District and Taluka level. Similarly, it has been proposed that a person should not hold such office at more than two levels at the same time. It is also proposed to provide that a person should not be a designated officer of any such society for more than six consecutive years.” From this clause it would appear that the intention was to restrict the tenure of persons holding key positions of power in the Co-operative Institutions for long periods, to prevent the co-operative movement from becoming the preserve of few individuals or in other words to prevent creation of vested interest. The provision in question, however, in terms applies only to specified society and that too only to those societies falling in one of the categories mentioned in sub-section (2). The object clearly is to prevent a person from holding a key position for a continuous period of 6 years in a society which had continued to exist as a society of one of the three categories for the entire period of 6 years during which the person held the office, it is not the intention of the Legislature to restrict the tenure merely of a society acquiring the character of a society of one of the three categories mentioned in sub-section (2) and adding the period during which the society did not fall in one of the categories comprised in sub-section (2). It is well settled rule of construction that when the words in the statute are reasonably capable of more than one interpretation, the object and purpose of the statute, a general conspectus of its provisions and the context in which they occur might induce a Court to adopt a more liberal or a more strict view of the provisions, as the case may be, as being more consonant with the underlying purpose. (See State of Rajasthan v. Leela1). Similarly, it is also a well settled rule of law of constructions of a statute that when on construction of a statute, two views are possible, one which results in an anomaly and the other not, it is the duty of a Court to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies. See Veluswami v. Raja Nainar2. In our view, taking into consideration the object and purpose of enacting the provision, the more reasonable and rational interpretation of the provision would be to hold that in order to incur the disqualification, the person must have a consecutive period of tenure of more than six years in a society which existed as a society of one of the three categories mentioned in sub-section (2) during that period. 9. There is another aspect also which must be borne in mind while construing the provision. It is a provision of disqualification and naturally must be strictly construed because it takes away the right of the designated officer to continue his office for more than six years. After all. 9. There is another aspect also which must be borne in mind while construing the provision. It is a provision of disqualification and naturally must be strictly construed because it takes away the right of the designated officer to continue his office for more than six years. After all. a disqualification clause has to be construed strictly and in the absence of plain and unambiguous wordings showing the intention of the Legislature to restrict the tenure of the person as a designated officer even in cases where a part of the tenure is prior to the society getting the status of the three categories mentioned in the provision should be included. Such a construction of the provision is not possible. We are, therefore, clearly of the view that on a true construction of the provisions of sub-section (5) of section 73-A, the period during which the society did not answer the status of a society in any of the three categories mentioned in sub-section (2) has to be ignored for the purposes of counting the period of six years' tenure of the person who is sought to be disqualified. 10. As far as the second contention urged by the learned counsel is concerned, the relevant material has not been produced before us. The orders sought to have been passed by the Registrar extending the period of' the Managing Committee or its officers have not been produced before us. In the absence of proper material, we do not think it possible to examine the contention that the petitioner was a person appointed or nominated by the State Government or by the Registrar under the Act so as to exclude the period from consideration. 11. In the view that we have taken, the petition is allowed. The impugned order dated August 20, 1983 passed by the Assistant Registrar is quashed and set aside. Rule made absolute with no order as to costs. Petition allowed. -----