JUDGMENT F.I. Rebello, J.
1. Rule. Heard forthwith.
2. This petition is pending since the year 2003 without being admitted. The only relief prayed for is to quash and set aside the order dated 18th October 2003. By that order the Divisional Joint Registrar-respondent No. 1, set aside the order dated 13th October 2003 issued by respondent No. 2. That letter pertains to the voting rights in the Non Borrowers Category. Respondent No. 1 relying on Bye-law No. 37 held that only voters from Non Borrowers category could vote to elect a member of the Committee for the category of seat reserved for Non Borrowing members.
The Managing Committee of the society consists of 17 elected members who are as under:
1) General quota - 10 seats
2) Scheduled Caste - 1 seat (reserved)
3) Scheduled Tribe - 1 seat (reserved)
4) Other backward class -1 seat (reserved)
5) Economically weaker Section - 1 seat (reserved)
6) Non borrowing category -1 seat (reserved) 7) Ladies quota - 2 seats (reserved).
It may be mentioned that earlier the Registrar/ Delegate had passed an order under Section 78 of the Maharashtra Co-operative Societies Act, 1960 (it hereinafter shall be referred to as the "Act") removing the Managing Committee and appointing an Administrator under Section 78 of that Act. That decision was challenged before this Court in Writ Petition No. 6240 of 2002. By an order dated 24th June 2003 a learned Single Judge ordered that the Managing Committee to continue in the office till a new Committee is elected in the election to be held in terms of the orders passed by the Court. A direction was issued to the Assistant Registrar of Co-operative Societies, Sinnar to hold elections as expeditiously as possible and not later than three months from that day. It was further directed that until a new Committee enters into office, the present Committee to continue to discharge day to day activities only. There are some directions issued to the Managing Committee not to take any policy decision, nor enforce any policy decision that has not been given effect to so far. It was clarified that the existing Committee would discharge only routine business of the respondent No. 2 society.
3. The District Deputy Registrar thereafter issued the impugned order dated 13th October 2003 which was the subject matter of the revision before respondent No. 1. This Court was pleased to grant status-quo on 27th October 2003 and that has been continued till date. During pendency of the petition the petitioners applied for amendment of the petition and incorporated a prayer being prayer Clause (aa) which reads as under:
aa) That by an appropriate Writ order or direction this Honble Court be pleased to declare that Bye-law No. 37 of the Respondent No. 3-society is unconstitutional and contrary to the provisions of Section 73C(3) of Maharashtra Co-operative Societies Act, 1960.
The amendment was effected on 13th June 2006. Consequent to this amendment, the matter has been placed before a Division Bench of this Court.
Bye-law No. 37 defines that "Non Borrower" means those members who have not obtained a loan. It further states that for the seat for non borrowing category, only non borrowers can vote.
4. At the hearing of this petition, on behalf of petitioners, the learned Counsel submits that if Section 73C(3) of the Act is read in its proper perspective, then Bye-law No. 37 to the extent that it restricts rights to vote to the non borrower seat only from the category of non borrower members, is clearly contrary to Section 73C(3) of the Act and consequently the said Bye-law is liable to be struck down.
It is further submitted that the order passed by the first respondent dated 18th October 2003 is contrary to the provisions of Section 73C(3) of the Act and various judgements of this Court. Under the provisions of the Act it is submitted, there can be no restriction on non borrower members casting their votes for the candidates contesting from the non borrowers category and, therefore, the impugned order is bad in law.
5. The Deputy Registrar of Co-operative Societies, Taluka & District Nashik has filed his affidavit on behalf of respondent No. 1 based on the records available. The explanation to Bye-law No. 37 as translated has been reproduced and it reads as under:
Non borrower members means the member, who has not taken loan after becoming member. Only Non borrower members will cast their votes for the said Non borrower member. he cannot be elected as Officio of the Management Committee. Being a Non borrower member of the Management Committee if he takes loan, he will be automatically disqualified as Non Borrower Member of the Management Committee.
Relying on this Bye-law it is submitted that the entire submissions and contentions of the petitioners are bereft of merit. It is, therefore, prayed that the petition be dismissed.
6. Both the contentions as urged on behalf of the petitioners, will have to be tested on the touchstone of Section 73C(3) of the Act and the Explanation to Bye-law No. 37, which we have reproduced earlier.
Before going into the issue, we may at once consider the procedure for certification of bye-laws. Amentment to the bye-laws is provided in Section 13 of the Act. Section 13 provides the manner in which the amendment of the bye-laws has to be effected for it to be valid. Section 13(1B) provides that the Registrar shall not register any amendment to the bye-laws of a society, if the amendment is repugnant to the policy directives of the State under Section 4 of the Act. Section 14 is a suo motu power in the Registrar to direct a society to amend the bye-laws in the circumstances set out therein. The relevant portion of Section 73C(3) reads as under:
73-C. Restrictions on representation of certain class of members on committees of certain societies and for being designated officers.
(1) ...
(2) ...
(3) In the case of an Agricultural Credit Society which gives loans to individuals for the raising of crops, there shall not be more than one representative on the committee of such society; of members who have not taken any loans from the society; and that representative shall be elected only from amongst members, who have not taken loans. Such representative shall not be eligible for being elected as a designated officer.
7. Before answering the issue, we may now consider the judgements relied upon. In Shri Dinkar Pandurang Patil and Anr. v. Chikali Vividh Karyakari Society Ltd. and Ors. 1984-CTJ-147 in issue was the order of the Administrator restricting the right of non-borrower members to cast their vote for non borrowers category and prohibiting them from voting for other candidates for the other seats. The Administrator in passing the impugned order, noted the absence of any provision in the bye-laws creating any separate constituency for such non borrower members to justify such restriction on their voting rights. The issue before the learned Division Bench of this Court was, as to the interpretation of the provisions of Section 73C(3) of the Act. The learned Division Bench after considering various provisions of the Act, Rules and Bye-laws observed as under:
The Act and the Rules to which our attention was drawn do not show how precisely the members of the Committee are to be elected. It appears to have been left to each society to regulate such procedure by its bye-laws.
The learned Division Bench also noted that instances of voters being divided into separate constituencies restricting their such voting rights to the candidates standing from such constituencies are not unknown to the law of election, where the number of voters happen to be large, or interests of voters happen to differ depending on their place of residence or nature of their membership. The learned Division Bench thereafter proceeded to hold as under:
Firstly, election of such representative from amongst such non-borrowing members does not mean election "by" them alone. In the absence of any provision for the election of such representative "by" them alone, right of borrowing members to exercise their vote in his election cannot be denied.
A consideration of this judgement would, therefore, indicate that the issue involved was whether the non borrowing members could only exercise their vote for electing of member to the Managing Committee from the non borrowing category and excluded from voting for other candidates. The learned Division Bench held that there was no bar in the bye-laws preventing the voters belonging to the non borrowing category from casting their votes also for the other candidates. The other aspect of the matter was that a clear finding was recorded that this construction was being placed in the absence of a specific bar.
Reliance was next placed on the judgement of Machindranath Bandu Kale and Ors. v. Satali V.K.S. Society Ltd. and Ors. . The issue there again was whether there was a restriction on the non borrowing members to vote for other members of the committee. The learned Division Bench followed the judgement of Chikali V.K.S. Ltd. and Ors. (supra).
Reliance then was placed on an unreported judgement in the case of Bhajandas Gorekh Bhuirkar v. The District Election Officer and Ors. Writ Petition No. 1945 of 2003 decided on 4th November 2003. The petitioners were borrower members. The Managing Committee of the society consisted of 17 members out of which ten members were to be elected from the borrower members and one member was to be elected from non borrower members. The electorate of the society under Bye-law No. 38-A was divided into two constituencies and voters list published in two parts:
(i) "a" constituency; class borrower members
(ii) "b" constituency. class borrower members Elections to both the constituencies were to be held simultaneously. The petitioner apprehended that as per the bye-law No. 38-A of the bye-law of respondent No. 3 society, the borrower members would be allowed to vote only in the constituency of the borrower members and non borrower members would be allowed to vote only for one seat meant for non borrowing members. It was contended that this was contrary to law. Reference was made to various judgements including to Chikali V.K.S. Ltd. and others (supra) as also Machindranath Bandu Kale and others case (supra) as also to some other judgements. Turning to the case of Chikali V.K.S. Ltd. and others (supra), the learned Division Bench noted that there was no bye-law like bye-law No. 38-A, in the Chikali V.K.S. Ltd. and others (supra). The Court further observed that the constituencies are created by the bye-laws and as such the voting right would be governed by the bye-laws. Considering bye-law 34-A, a voter belonging to one constituency can be restricted to the voting at the election to committee members from that constituency alone. The Court held that considering bye-law 38A, a member belonging to one constituency is not entitled to vote at the election of the members of the Managing Committee from the other constituency under the said law.
Considering the ratio decendi of the three judgements, referred to above it would be clear, that the right to vote, would depend on the bye-laws of the society and as long as, such bye-laws are not inconsistent with Section 73C(3) of the Act.
8. It is in this context that we may now examine the issue before us. The Managing Committee consists of 17 elected members, out of which 10 seats are reserved for general category members and seven seats are reserved seats which includes one member from non borrowing category. Section 73C(3) statutorily provides that in Agricultural Credit Societies which gives loans to the individuals for raising crops, there shall not be more than one representative on the committee of such society from amongst non borrowing members. The further requirement is that such member should be elected only from amongst the members who have not taken any loans. In other words, a member who can be elected to that seat must be a non borrower alone. The section is silent as to who can vote for electing such non member. The bye-law, however, restricts the right to vote only to members belonging to non borrowing category. It is further provided that such a member if he takes a loan during the period of his membership, will cease to be a member of the Managing Committee. Can it be said that such bye-law is contrary to Section 73C(3) and even if it is contrary, if the bye-law is certified, is it open to this Court to strike down the said bye-law without the parties resorting to the mechanism provided under the provisions of the Act.
Bye-laws of a co-operative society are not statutory in character though they may have a statutory flavour. They are in the nature of rules made for managing the internal affairs of the society. Amendment of bye-laws which are certified, is as provided by Sections 13 and 14 of the Act. A Registrar can only certify those bye-laws which are not inconsistent with the Act and the Rules and to any direction issued by the State Government. Once the bye-laws are certified and registered, they are binding until such time the bye-laws are amended or a person aggrieved pursues the remedies under the mechanism provided by the Act, to set aside the bye-laws. It would not be open to a Writ Court in the exercise of its extraordinary jurisdiction to quash the bye-laws when the party aggrieved has a remedy by way of mechanism under the provisions of the Act. Apart from Section 13 there is power in the Registrar under Section 14, to direct a society to amend its bye-laws. It may further be noted that the section contemplates that there cannot be more than one member from the non borrower category in the case of Agricultural Credit Society. In other words, though non borrowing members are members, the Act has imposed a restriction that not more than one such member should be represented on the committee. The Act does not take away the right of such non borrower members from voting for other categories, as noted by the judgements referred to, with which we are in respectful agreement. The object of such representation is that non borrowing members should also have a say in the running of the society and that their representative should not be elected by persons other than non borrowers considering that normally in a co-operative society there would be more borrowing members than non borrowing members. In fact, according to the figures given by the petitioner at the time of filing of the petition, there was about 662 members of which 514 were from borrowers category and 148 are from non borrowers category. The question is whether such a bye-law is invalid? In our opinion, in the absence of any bar in the Act and the object behind the provision for providing for representation of a non borrowing member on the managing committee and considering the model bye-laws based on which the amendment to the bye-laws of respondent No. 3 have been carried out, it was well within the jurisdiction of the pegistrar to have certified the bye-laws. The bye-laws as amended were approved by the General Body of the society and have been certified by the Registrar.
Apart from that, as we have noted earlier, the bye-law by itself is clear and unambiguous. In respect of the seat for non borrowers members only the non borrowing members are entitled to exercise their franchise. Not only that, the explanation to bye-law 37 further provides that once a non borrower is elected and during the term of office takes a loan, he is automatically disqualified as non borrower member of the managing committee. It cannot be said that such a bye-law which confers a right on non borrowing members, is contrary to Section 73(C) of the Act or the judgements of this Court which were cited. In our opinion, therefore, it will not be possible for this Court in the exercise of its extraordinary jurisdiction to quash the bye-law as framed and certified by the Registrar under the provisions of the Act. Petitioners, if aggrieved, will have to resort to the remedy of amending the bye-laws in terms of Section 13 of the Act or to move the Registrar under Section 14 of the Act and if aggrieved by the decision of the Registrar, then to seek remedy under the Act. This Court will not strike down the bye-law in the exercise of its extraordinary jurisdiction considering that it is not statutory. However, the challenge to the orders of the Certifying Officer and the orders passed in appeal or revision, as the case may be, the decision certifying the bye-law can be examined and if contrary to law, will be struck down, which will have the effect of the bye-law being not certified and consequently not a part of the certified bye-laws.
9. The learned Counsel had prayed that in order to enable the petitioner to take steps to commence the process of amendment of bye-laws, the interim stay should be continued. We are not persuaded by this argument. The learned Single Judge by order dated 24th June 2003 had directed holding of elections. For the last three years the elections have not been held consequent to the present petition and the order of status-quo. The judicial forum ought not to be used to perpetuate a committee in office though their term has expired. The committee was allowed to continue in office though removed by an order under Section 78 of the Act in view of the directions to hold elections within three months from 26th March 2003, and allow the old committee to continue till the new committee takes over. Though the term of the committee has come to an end, yet it continues to hold office in view of the order of this Court. It is not possible to countenance such an act. Apart from that, the strength of the managing committee is seventeen members and what is the subject matter is only one seat in the non borrower constituency. We see no reason why, therefore, the prayer for continuing the said committee should be granted. Apart from that, the bye-laws have been certified by the Registrar. In the circumstances, in our opinion, this petition will have to be disposed off by issuing the following directions.
10. (A) The Assistant Registrar, Co-operative Societies, Sinnar, District Nashik is directed to complete the election process within four months from today;
(B) If in the event and in spite of the directions of this Court any Court or Tribunal grants an interim relief which has the effect of staying the elections, considering that the term of the Managing Committee has expired by efflux of time, an Administrator be appointed to immediately act as an Administrator of the society and complete the election process;
(C) Rule discharged subject to directions as given.