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2013 DIGILAW 2683 (BOM)

Vijayabai Balasaheb Lelkar v. Amol Bapurao Kokane

2013-12-24

S.V.GANGAPURWALA

body2013
Judgment 1. The legality and validity of the elections of the members of managing committee of respondent/Takli Bhan Vividh Karyakari Seva Society Taklibhan, Tq. Shrirampur (hereinafter referred as to the “Society” for the sake of brevity) is the subject matter involved in the present petitions. 2. The elections of the said Society were held on 03rd April, 2011 for the term 2010-11 to 2015-16. The said elections were held pursuant to the byelaws of the society, wherein the right of the non borrowing members were restricted i. e. non borrowing members were prohibited to cast vote to the reserved category candidates. There are total 13 members of the managing committee, out of said 13 members, 5 are from reserved category i. e. women, other backward class, nomadic tribes, scheduled caste and scheduled tribe. The respondents herein filed dispute U/Sec. 91 of the Maharashtra Cooperative Societies Act (hereinafter referred as to the “Said Act” for the sake of brevity) basically challenging the election of the reserved category members. The Cooperative Court allowed the dispute and set aside the election of the reserved category members. The members who were elected from the reserved category filed appeal before the Cooperative Appellate Court. The Cooperative Appellate Court allowed the appeal, however, went one step further and set aside the complete election of the managing committee. The Writ Petition No.6587/2013 is filed by the members elected from the reserved category and Writ Petition No.6537/2013 is filed by the members elected from the open category, whose election is set aside by the Cooperative Appellate Court. 3. As both the writ petitions are based on common set of facts, they are decided together. 4. Mr. Karpe, the learned counsel for the petitioner in Writ Petition No.6587/2013 during the course of his lucid arguments put forth following propositions. A. The byelaws of the society are registered. The amendment to the byelaws which declines the right of the non borrowing members to cast vote to the reserved category candidates is also registered/certified as per Sec. 13 of the said Act. As per Sec. 14 of the said Act the byelaws as amended are binding on the society and its members. As the amendment to the byelaw prohibiting the non borrowing member to cast vote to the reserved category candidates is registered, the same is binding on the society and its members. As per Sec. 14 of the said Act the byelaws as amended are binding on the society and its members. As the amendment to the byelaw prohibiting the non borrowing member to cast vote to the reserved category candidates is registered, the same is binding on the society and its members. The elections held pursuant to the said byelaws cannot be said to be illegal. If there is no infringement of byelaws, election cannot be set aside. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Bhagwat Sonawane and others Vs. State of Maharashtra and others reported in 2002(5) Bom. C.R. 263. B. The petitioners have been elected in accordance with byelaws existing and certified at the time of election, the same cannot be set aside. C. Though Writ Petition No.1702/2011 was filed challenging the byelaw Nos. 9(5), 9(6) and 9(7), High Court did not grant stay to the said byelaws. On the contrary, passed an order that the elections are subject to the decision of the writ petition. The elections were allowed to be proceeded. Subsequently, the writ petition is disposed. While disposing of the writ petition, the Court did not set aside the said amended byelaws. As such, the Courts below could not have entertained the election petition and set aside the election. D. The Courts below relied on the orders passed in other writ petitions and not in the writ petition filed in respect of present society. The Courts below could not have referred to the orders passed in other writ petitions while considering the validity of the elections of the present society. E. The restriction in the election programme is permissible. The voting rights can be restricted in the election programme and the bye-laws. The learned counsel relies on the judgment of the Division Bench of this Court in a case of Sanjay D. Jadhav Vs. State of Maharashtra and others reported in 2007(6) Bom.C.R. 381 . F. The Committee has to be constituted in accordance with the Rules, as also the byelaws of the society. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Purushottam Yashwat Patil and others Vs. State of Maharashtra and others reported in 2002 (02) Bom.C.R. 337. F. The Committee has to be constituted in accordance with the Rules, as also the byelaws of the society. The learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Purushottam Yashwat Patil and others Vs. State of Maharashtra and others reported in 2002 (02) Bom.C.R. 337. According to the learned counsel in the said case, the learned Judge has held that the managing committee of every society has to be constituted, not only in accordance with the Act and the Rules, but also in accordance with the byelaws. G. Additional disqualification or restriction can be added by the byelaws. For the said purpose the learned counsel relies on the judgment of the learned Single Judge of this Court in a case of Sambha Pikale Vs. The State of Maharashtra and others reported in 1996(2) Bom.C.R. 700 . H. When the statute is silent, the byelaw which is certified will prevail and has to be followed. The learned counsel relies on the judgment of the Division Bench of this Court in a case of Vijay Shivaji Kokate Vs. Divisional Joint Registrar reported in 2007(3) Mh. L. R. 539. I. Both the Courts below have not dealt with the issue about the consistency or otherwise of the byelaws and the provisions of the statute. In absence of thereof, the elections could not have been set aside. J. Even Sec. 73(1) of the said Act lays down that, the management of every society shall vest in a committee constituted in accordance with the Act, the Rules and the byelaws. In the present case, the elections have been held in accordance with the byelaws, as such could not have been set aside. K. Now the category of non borrowing members does not exist, as such, it would be futile to set aside the election of the members of the reserved category. 5. Mr. V. D. Salunke, the learned counsel for petitioners in Writ Petition No.6537/2013 submits that, the election of the petitioners from the open category was not challenged. The learned Cooperative Court has not set aside their election. No appeal was filed by the disputants against the order of the Cooperative Court, still the Cooperative Appellate Court set aside the election of the petitioners from the open category. The petitioners are taken by surprise. The learned Cooperative Court has not set aside their election. No appeal was filed by the disputants against the order of the Cooperative Court, still the Cooperative Appellate Court set aside the election of the petitioners from the open category. The petitioners are taken by surprise. There was no reason to set aside the election of the members from open category. No illegality has been committed in the election of members of the managing committee from the open category. 6. Mr. V. D. Hon and Mr. V. D. Sapkal, the learned counsel for respondents/disputants support the judgments of the Courts below and submit that, (a) Sec. 73(B)(3) of the said Act allows every person who is entitled to vote at the election to the committee to vote at the election for any such reserved seat. Sec. 73(B) deals with the election for the reserved seats for the members belonging to the Scheduled Caste/Scheduled Tribe, Other Backward Class and Nomadic Tribe or Special Backward Class. Similar provision is contained in Sec. 73(BBB)(3). It gives the right to every member to vote for the said reserved seat. The said byelaw 9(5), 9(6) and 9(7) which prohibits members of the non borrowing category to cast their votes for the reserved candidates is against the provisions of the statute i. e. Sec. 73(B)(3) and Sec. 73(BBB)(3). Such a byelaw, which is against the provisions of the statute is illegal and elections held contrary to the provisions of the statute, deserve to be set aside and have been rightly set aside. The learned counsel relies on the judgment of the Apex Court in a case of Babaji Kondaji Vs. Nashik Merchants Cooperative Bank reported in AIR 1984 SC 192 and in a case reported in (1984) 2 SCC 50 . (b) The byelaws are not legal. They have been subsequently accepted as illegal. All elections as such are illegal. (c) In Writ Petition No. 1702/2011, the Court disposed of the said writ petition, as affidavit was given by the State authorities about withdrawing/deleting the said amendment prohibiting the non borrowing members to cast vote to the reserved category candidates. Relying on the same the Court disposed of the writ petition. The Courts below have properly considered the relevant aspects of the matter and have rightly passed the order. Relying on the same the Court disposed of the writ petition. The Courts below have properly considered the relevant aspects of the matter and have rightly passed the order. The Cooperative Appellate Court was justified in setting aside the whole election, as the same has been affected by the illegality committed during the course of the election. 7. Before I proceed to deal with the arguments canvassed by the learned counsel for respective parties, it would be appropriate to refer to the relevant provisions of the said Act. THE MAHARASHTRA COOPERATIVE SOCIETIES ACT 73-B Reservation of seats on committees of certain societies for Scheduled Caste, Scheduled Tribes (or Other Backward Classes, Denotified, Tribes (Vimukta Jatis) Nomadic Tribes, Special Backward Classes) and for members of weaker section and election thereto. (1)........ (3) Any individual member of the society, or any elected member of the committee of a member-society, or any member of the committee of a member-society, whether elected, co-opted or appointed under this section, belonging to the Scheduled Castes or Scheduled Tribes, 9 [or Other Backward Classes or Denotified Tribes (Vimukta Jatis) or Nomatic Tribes or Special Backward Classes,] or as the case may be, weaker section, shall be eligible to contest the election to a reserved seat and every person who is entitled to vote at the election to the committee shall be entitled to Vote at the election to any such reserved seat. 73-BBB Reservation of seats on committees of societies for women members and elections thereto (1)....... (3) Any individual woman member of the society, or any woman member of the committee of a member society, whether elected, co-opted or appointed, shall be eligible to contest the election to a reserved seat on a committee of a society. 4 [and every person who is entitled to vote at the election of the committee shall be entitled to vote at the election to any such reserved seat]; 8. The undisputed factual matrix can be culled out as under. 9. The elections for the managing committee of the said society were held on 03rd April, 2011. Out of 13 members of the managing committee, 5 are meant for reserved category. The members of non borrowing category were not allowed to vote in the said election for reserved seats as per the byelaws existing then. 9. The elections for the managing committee of the said society were held on 03rd April, 2011. Out of 13 members of the managing committee, 5 are meant for reserved category. The members of non borrowing category were not allowed to vote in the said election for reserved seats as per the byelaws existing then. The writ petition was filed bearing W.P. No. 1702/2011 challenging the amended byelaws, whereby the non borrowing members were not allowed to cast vote for the candidates from the reserved category. In the said writ petition, the elections of the said society were made subject to the decision of the writ petition. Subsequently, said writ petition No. 1702/2011 was disposed of on 06th September, 2011 along with group of other writ petitions. The Court passed the following order:- "4. The affidavit is filed on behalf of the respondent-authorities by the District Deputy Registrar, Osmanabad. In the affidavit in reply, it is categorically stated that the amendments will have to be made keeping in view the provisions of section 73(C)(3) of the M.C.S. Act. It has been specifically stated that for amendment of the byelaws, first the general body meeting of all the concerned societies will have to be convened and the proposed amendments will have to be placed before the general body meeting. It has been stated that after the general body passes the resolution, the same will have to be sent to the Assistant Registrar, Co-operative Societies/District Deputy Registrar of the concerned Cooperative Society for the necessary approval and thereafter the proposed amendment will come into force. It has been further observed that, if the society fails to pass the resolution in that regard, the Assistant Registrar, Cooperative Societies and the District Deputy Registrar, Cooperative Societies would complete the procedure after following the necessary procedure as described under the relevant provisions of the M. C. S. Act and rules framed there-under. 5. During the pendency of the present Petitions, elections have already been held to the various Vividh Karyakari Cooperative Societies on the basis of the interim orders passed by this Court. Only in some of Petitions, the results have been either withheld or directed to be made subject to the result of the present Petition/s. It is further clarified that wherever the results of the elections are withheld, the same shall be declared within a period of two (2) weeks from today. Only in some of Petitions, the results have been either withheld or directed to be made subject to the result of the present Petition/s. It is further clarified that wherever the results of the elections are withheld, the same shall be declared within a period of two (2) weeks from today. We find that in election process, interference would not be in interest of societies at this stage. 6. We therefore dispose of the Writ Petitions by accepting the statement made on behalf of the respondent-authorities of taking the necessary steps for amending the byelaws, as stated int he affidavit. The same shall be completed either by the Societies or int he event, the Society do not comply, then by the concerned Assistant Registrar, Co-operative Societies/District Deputy Registrar, Cooperative Societies/within a period of six (6) months from today. 7. Rule is partly made absolute accordingly." 10. Thereafter, the disputants filed the dispute challenging the election of the members of the managing committee elected from the reserved category. The disposal of Writ Petition No.1702/2011 will not have any bearing on election dispute as the election dispute is based on the conflict between the byelaws and the provisions of statute. The election of returned candidate can be challenged by way of election dispute only. 11. It is not disputed that the amended byelaws wherein the non borrowing members were not permitted to cast vote to the members of the managing committee from reserved category were certified on the relevant date. The moot question would be whether, the elections held pursuant to the said byelaws would be legal and valid in the teeth of provisions of Sec. 73B( 3) and 73BBB( 3) of the said Act. 12. Perusal of Sec. 73B( 3) and 73BBB( 3) of the said Act, it is manifest that the said provisions permit every person who is entitled to vote at the election of the committee to vote for the election of the members to any such reserved seat. The said provisions expressly confer a right upon every person who is entitled to vote at the election to the committee to vote to any such reserved seat. The non borrowing members have a right to vote at the election to the committee. The said provisions expressly confer a right upon every person who is entitled to vote at the election to the committee to vote to any such reserved seat. The non borrowing members have a right to vote at the election to the committee. Once these non borrowing members are given right to vote at the election to the committee, then in view of the afore-referred provisions, they are conferred a right to vote to a election of reserved category candidate or such reserved seat. However, amended byelaw purports to take away the right of the non borrowing member to cast vote to the reserved seat. 13. To vote and contest the election are right created by the statute and will have to be exercised within the framed statute, rules and bye laws. Byelaws are always subordinate to the statute as well as the Rules. Byelaws can at the most be said to be subordinate piece of legislation. The subordinate piece of legislation cannot supplant the statute. The byelaws cannot be given a statutory force, nor it can be said to possess a statutory flavour. The byelaw not in consonance with the statute cannot be allowed to prevail. If a statute is silent about a particular aspect, the byelaws may provide for the said exigency for which the statute is silent. However, if a statute expressly confers a right on a member of the society, the same cannot be negated by the clauses of the byelaws. Bye laws cannot override statutory provisions. The statutory provisions cannot be rendered otiose by clause in byelaws. If the clause in the byelaws is accepted i. e. prohibiting the non borrower member to vote for the election to a reserved seat then the statutory provision U/Sec. 73(B)(3) and 73(BBB)(3) of the said Act giving right to such non borrower members to vote to reserved category candidates shall be rendered a dead letter. The statutory right given to a non borrower member to cast vote to a reserved seat cannot be set at nought by clauses in byelaws. The said clauses would be repugnant to the statute. Such byelaws cannot be allowed to prevail over the statutory provision. 14. The statutory right given to a non borrower member to cast vote to a reserved seat cannot be set at nought by clauses in byelaws. The said clauses would be repugnant to the statute. Such byelaws cannot be allowed to prevail over the statutory provision. 14. The Apex Court in a case of Babaji Kondaji referred supra has held that, if there is conflict between statute and subordinate legislation, then statute prevails over subordinate legislation and the byelaw if not inconformity with the statute in order to give effect to the statutory provision, the rule or byelaw has to be ignored. The statutory provisions has precedence and must be complied with. The Apex Court further observed that, the byelaw of a Cooperative Society can at the most have the status of a Article of association of a Company, governed by the Companies Act. The byelaws of Cooperative Society framed in pursuance of the provisions of the relevant Act cannot be held to be law or to have the force of law. They are neither statutory in character, nor they have statutory flavour so as to be raised to the status of law. 15. In a case of Bhagwat Sonawane and others Vs. State of Maharashtra and others referred supra, the learned Single Judge was not considering the provisions of byelaws viz-a-viz the statutory provisions. In a case of Sambha Pikale Vs. The State of Maharashtra referred supra it was held that, byelaws cannot water down the restriction, but they can provide for additional disqualification. In the present case, the byelaws are violating the statutory provision. In a case of Vijay Shivaji Kokate Vs. Divisional Joint Registrar referred supra the Division Bench was considering a case where there was no barring provision under the Act. It was observed by the Division Bench that in absence of a bar under the Statute the provision providing for the representation of a non borrowing member on the managing committee as per the byelaw is not faulty. In the said case, the section or the provision in the Act was silent which is supplemented by the byelaw. In the present case, the byelaw is contrary to the provision of statute. In the said case, the section or the provision in the Act was silent which is supplemented by the byelaw. In the present case, the byelaw is contrary to the provision of statute. Considering the above, I do not see any error committed by the Cooperative Court in setting aside the election of the members elected from the reserved seat, as non borrowing members were deprived to cast their vote to the reserved seat. I have also enquired about the number of voters of non borrowing category at the relevant time. The learned counsel do not dispute the position that at the relevant time the number of voters from the non borrowing category were more than 7000, which would materially affect the result of election of the reserved seats. 16. As far as setting aside the election of the candidates elected from open category is concerned, the Cooperative Appellate has exceeded its jurisdiction. The disputants never prayed for setting aside the election of the members of managing committee from open category. The Cooperative Court also did not set aside their election, no appeal was filed against the said order by the disputants. It was nobody's case in appeal also that the election of the members from the open category is also vitiated. In such an eventuality, the Cooperative Appellate Court ought not have set aside the election of the members from open category. 17. In the result, the Writ Petition No.6587/2013 filed by the petitioners who were elected from the reserved seat is dismissed. 18. The Writ Petition No.6537/2013 filed by the members elected from open category is partly allowed to the extent of setting aside the election of members of open category. The other directions given by the Cooperative Appellate Court have become redundant. The judgment of the Cooperative Court is upheld. No costs. 19. At this stage, Mr. Karpe, the learned counsel states that, interim orders which were granted in Writ Petition No. 6587/2013 be continued for a period of four (4) weeks. Mr. Hon, the learned counsel opposes the said request. 20. Considering the fact that, interim orders were in force, said interim orders are continued for a period of three (3) weeks from today. Needless to state on lapse of three weeks interim orders passed by this Court shall come to an end.