The Para Medical Employees ... vs Mrs. Shashikala Kamble, Staff ...
2003 Latest Caselaw 1055 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard the learned Advocates for the Petitioner and the Respondent Nos. 1 and 2. As far as the Respondent No. 3 is concerned, there is no case for proceeding against the Respondent No. 3 disclosed in the Writ Petition. Hence, as far as the Respondent No. 3 is concerned, the Petition is dismissed in limini.

2. Rule, by consent, the Rule is made returnable forthwith.

3. The Petitioners challenge the orders passed by the Co-operative Court and the State Co operative Appellate Court dismissing the application filed by the Petitioners for rejection of the dispute which was sought to be raised by the Respondent Nos. 1 and 2 in relation to the election to the Board of Directors of the Petitioner No. 1-Society. The application for rejection of the said dispute was filed by the respondents contending that the same was raised beyond the period of limitation prescribed under Section 92(1)(d) of the Maharashtra Co-operative Societies Act, 1960, hereinafter called as "the said Act".

4. Few facts relevant for the decision are that the Petitioner-Society is a co-operative Society registered under the said Act and in terms of the election notice to the Board of Directors issued on 26th May, 2002, the nominations were required to be filed within the period from 3rd June, 2002 to 8th June, 2002 by 5.00 p.m. of the later date, the scrutiny of the nomination forms was scheduled to take place on 12th June, 2002 followed by the declaration of valid nominations at 7.00 p.m. on the same day. The candidates could have withdrawn the nominations from 13th June, 2002 till 15th June, 2002 by 5.00 p.m. Final list of contesting candidates was required to be displayed on 16th June, 2002. The election symbols were required to be given on 18th June, 2002 and voting was scheduled to take place on 28th June, 2002 between the 8.00 a.m. and 6.00 p.m. and counting of votes was to commence after 7.00 p.m. on 28th June, 2002 till the conclusion thereof and the results of election were to be announced thereupon in the Annual General Meeting. The Notice dated 26th May, 2002 did not disclose the date of the Annual General Meeting and it is not in dispute that till this date, no Annual General Meeting has been held. It is also not in dispute that the election programme was announced in accordance with the provisions of law and the practice followed by the co-operative societies for the purpose of election to the Managing Committee and for conducting the said election, the Returning Officer was appointed. In all 23 nominations were received till the last date of receiving of nominations. However, before the date of scrutiny, two of the said nominations were sought to be withdrawn, and in the course of scrutiny, it appears that 1.2 nomination papers, were declared invalid and consequently, 11 nominations were found to be valid nominations. It appears that there is some dispute about the rejection of nominations. However, the said point is not relevant for the decision in this Petition. It is undisputed fact that the election was scheduled to take place for 11 seats in the Managing Committee. It also appears that since only 11 nominations remained as valid nominations, and the election was for 11 seats, the Returning Officer after pronouncing the final list of candidates on 16th June, 2002, proceeded to record on 17th June, 2002 that since there were only eleven candidates to contest for eleven seats in the Managing Committee, they stand elected without any contest.

In the said declaration, the names of 11 candidates with their addresses were also recorded, It further appears that the rejection, of nominations was communicated on 28th June, 2002 to the Respondent Nos. 1 and 2 who were the two of the persons who had filed the nominations and whose nominations were reacted. The said Respondents thereupon on 27th August, 2002, raised the dispute in relation to the election on various grounds which are not relevant for consideration in this Petition. The Petitioners herein by their application dated 4th October, 2002 sought dismissal of the dispute on the ground of limitation under Section 92(1)(d) of the said Act, read with Section 3 of the Limitation Act, 1963.

5. The Co-operative Court, after hearing the parties, rejected the objection sought to be raised by the Petitioners holding that the results were required to be declared on 28th June, 2002 and, therefore, starting point for limitation was from 28th June, 2002 and hence, the dispute which was sought to be raised by the Respondents-Disputants on 27th August, 2002 was within the period of limitation. The State Co-operative Court while rejecting the appeal filed by the Petitioners against the said order dated 29th April, 2003 held that the results could not have been declared prior to 28th June, 2002- and further also rejected the contention of the Petitioners based on Rule 56X of the Maharashtra Co-operative Societies Rules, 1961, hereinafter called "the said Rules", on the ground that the society in question is not a notified society and the Rule 56X applies only to the election of the notified societies whereas, the rule relevant for the matter in question is Rule 60 of the said Rules.

6. The contention of the Petitioners is that though Rule 60(7) of the said Rules speaks of announcement of the results of the voting by President of the Co-operative Society, the election having been held by the secrete ballot system, in the absence of specific provision elsewhere in the said Act or the said Rules or in the bye-laws of the society, the provisions contained in Rule 56X of the said Rules are to be read into bye-laws of the society in question and having so read, the declaration of the election by the Returning Officer on 17th June, 2002 could not be found fault with, and, therefore, the dispute which was sought to be raised by filing an application on 27th August, 2002 was apparently beyond the period of limitation prescribed under Section 92(1)(d) of the said Act. Reliance is sought to be placed in the decision of the learned Single Judge of this Court in the matter of The P. & T. Central Co-operative Society Limited, Giripeth, Nagpur through its Secretary and Ors. v. Judges Co-operative Court, Ganeshpeth, Nagpur and Ors., reported in 1987 CTJ 676. On the other hand, the learned Advocate for the Respondents has submitted that the election programme, which was announced, was never changed and the so called declaration of the results on 17th June, 2002 was never communicated to the Respondents apart from the fact that the Returning Officer had no such power to declare the results, and the appropriate authority to declare the result is the President of Co-operative Society in terms of Rule 60 of the said Rules. Even the rejection of nomination forms was communicated to the Respondents only on 28th June, 2002. Besides, the Returning Officer himself was not eligible to be the Returning Officer in the matter and the entire election programme is vitiated. Considering all these facts, and the findings which have been arrived at by both the Courts below on the basis of assessment of the materials on record, cannot be said to be perverse findings or totally contrary to the materials on record, and, therefore, do not warrant interference in writ jurisdiction.

7. Section 92(1)(d) of the said Act read thus:-

"92. Limitation.-- (1) Notwithstanding anything contained in [the Limitation Act, 1963], but subject to the specific provisions made in this Act, the period of limitation in the case of dispute referred to [the Co-operative Court] under the last preceding Section shall -

(a) ..............

(b) .........................

(c) ...........................

(d) when the dispute is in respect of an election of a committee or officers of the Society, be [two months] from the date of the declaration of the result of the election."

8. Considering the rival contentions in the facts of the case and the relevant provisions of law quoted above, the following questions arise for consideration.

(i) What is the meaning of the expression "from the date of declaration of the results" in Section 92(1)(d) of the said Act ?

(ii) Whether the provisions of Rule 56X of the said Rules apply to the petitioner-society ?

(iii) Whether the dispute in question was raised within the period prescribed under Section 92(1)(d) of the said Act ?

9. The said Act does not make specific provision regarding the election program me pertaining to the Co-operative Societies. However, Section 73(1-A)(a) provides that notwithstanding anything contained in the said Act, the said Rules and the Bye-laws of any Society, the first general meeting of a society shall be convened within three months from the date of its registration to appoint a provisional committee and to transact other business as may be prescribed and that the term of the members of such provisional committee shall be for a period of one year from the date on which it has been first appointed or till the date on which a regular committee is duly constituted in accordance with the provisions of the said rules or bye-laws made under the said Act, whichever is earlier, and all the members of such provisional committee shall vacate office on the date of expiry of such period or such constitution of the committee. Section 165 of the said Act empowers the State Government to make rules for the conduct and regulations of the business of such societies to which the said Act applies and for carrying out the purposes of the said Act. In terms of Sub-section (2) of Section 165, without prejudice to the generality of the provisions in Sub-section (1)of Section 165, the State Government is empowered to make rules, to provide for general meetings of the members, for procedure at such meetings and the power to be exercised by such meetings, to prescribe the conditions in which a member of the society may be disqualified from voting, to provide for the removal and appointment of the committee or its members and other officers and for the appointment of administrator under Section 78 of the said Act and to prescribe procedure at meeting of the committee and for the powers to be exercised and the duties to be performed by the committee, administrator and other officers, to prescribe qualifications for members of the committee and employees of a society or class of societies, duties to be performed by and several and joint liability therefor of such members and the conditions of service subject to which person may be employed by societies etc. Indeed, the Clauses (xxxvii), (xxxviii), (xxxix) and (xl) of Sub-section (2) of Section 165 are clear in that, regard. Further, Clause (lxxv) of Sub-section (2) of Section 165 empowers framing of such rules to provide for all other matters expressly required or allowed by the said Act to be prescribed by the said Rules. The Government has accordingly framed the said rules.

10. Chapter VI of the said Rules deals with the subject of Management of Societies. Rule 58 thereof deals with the subject of disqualification for membership of the Committee. Rule 59 relates to First General Meeting of a Society. Rule 60 deals with the subject of General Meeting. Sub-rule (3) of Rule 60 provides that the Secretary or any other officer convening the meeting shall read out of the notice convening the meeting and the agenda for the meeting and then the subjects shall be taken up for consideration in the order in which they are mentioned in the agenda unless the members present, with the permission of the President, agree to change the order. It further provides that unless otherwise specified in the said Act, the said Rules and the Bye-laws, the resolutions should be passed by a majority of the members present in the meeting and the President enjoys a casting vote under the said sub-rule. Sub-rule (4) thereof provides that when the members are divided on any resolution, any member may demand a poll, when a poll, is demanded, the President shall put the resolution for vote, for result. Sub-rules 5 to 7 which are relevant for the decision in the matter read thus.--

"(5) Voting may be by show of hands or by ballot as may be decided by the members present at the meeting, unless otherwise specified in the bye-laws. Notwithstanding anything contained in the bye-laws, election of office bearers of a society having, members share capital in excess of Rs. 10,000/-, including Government share capital if any, shall be by ballot.

(6) When a voting is to be by ballot, the President shall take necessary steps for the issue of ballot papers and counting of votes?

(7) The result of voting shall be announced by the President."

The above provisions of law incorporated in Rule 60 of the said Rules apply to all Cooperative Societies unless there are specific rules or bye-laws prescribing any specific procedure for election programme relating to the Managing Committee of a Society. The fact that the provisions of Rule 60 apply to all Co-operative Societies is apparent from the expression "a society" used in Sub-rule (1) of Rule 60 which deals with the provision relating to the General Meeting of every such society. The term "Society" is defined in the said Act under Section 2(27) to mean "a Co-operative Society registered, or deemed to be registered, under the said Act". Apparently, therefore, the provision of Rule 60 applies to all Societies in the absence of specific rule to the contrary either in the said Act or the said Rules or Bye-laws duly approved for such a Society. It would be thus clear that Rule 60(7) specifically empowers the President of the Society to announce the results of voting and Sub-rule (5) specifically provides that the election shall be by ballot. Simultaneously, Sub-rule (6) provides that the President shall take every necessary steps for issuance of ballot papers and counting of votes. In other words, the President is empowered to make necessary arrangements which would include appointment of Returning Officer to conduct election to the Managing Committee and it will also include the arrangement regarding of counting of votes. It is, therefore, explicit from the said provisions of law contained in Rule 60 that there is specific power given to the President of a Society to delegate the function of conducting election programme including the counting of votes to the Returning Officer. At the same time, it reserves the right of announcing the result to the President of a Society. In other words, the provisions of law contained in Rule 60 therefore make it amply clear that the election of Managing Committee of a Society has to be by way of ballots when the share capital exceeds Rs. 10,000/- and the function of conducting election upto the point of counting of votes can be assigned to the Returning Officer while the function of announcement of the results is reserved for the President of the Society.

11. Rule 56X, which is to be found under Chapter VA, provides that, if after the expiry of the period within which candidature may be withdrawn under Rule 56T, the number of candidates in the constituency whose nominations have been accepted is equal to or less than the number of seats to be filed, the Returning Officer shall forthwith declare such candidate or all such candidates to be duly elected to fill the seat or the relevant number of seats, as the case may be, and shall certify the declaration in form M-9 and where the Returning Officer is not District Election Officer himself, he shall send signed copies thereof to the District Election Officer, The provision undoubtedly discloses ample powers to the Returning Officer to declare results of the election even prior to the date of election in a case where the number of candidates is found to be equal to the number of seats for which the election is scheduled to be held. However, the said provision specifically refers to elections of the Societies notified by the State Government under Section 73-IC and not to all or other Societies. The contention was sought to be raised that the title of the Chapter VA reads "Election to Notified Societies etc.," and, therefore, it cannot be said to be applicable to the solely notified societies and the expression "etc." discloses the intention of the Legislature to apply the provision's even to other societies where the provisions similar to the provisions of Section 56X are not made in the bye-laws of such a Society. The contention of the learned Advocate for the Petitioners in this regard cannot be accepted. Sub-rule (1) of Rule 56A specifically provides that "the election of the societies notified by the State Government under Section 73-IC shall be held of cause to be held by the Registrar through the machinery created for this purpose in the manner as specified hereunder .................". Apparently, Sub-rule (1) of Rule 56A clearly discloses that the provisions thereunder relate to the notified societies. Further, the sequence of provisions of law in which they are arranged from Rule 56 to 56X also apparently discloses that the provisions contained in Rule 56X are only relating to the elections to the notified societies and the same do not relate to the election of other societies. Therefore, merely because, Rule 56X empowers the Returning Officer to declare results of the election when the number of candidates are found to be equal to the number of seats for which the election is to be held, that would not enure to the benefit of other societies including the Petitioner-Society to contend that the recording of proceedings of election by the Returning Officer on 17th June, 2002 tantamounts to declaration under Rule 56X by the Returning Officer.

12. It is well settled that whenever the law provides specific mode or "manner for doing a particular thing, that the thing must be done in the said prescribed manner and in no other manner. Rule 60 of the said Rules provides the manner in which the election to the Managing Committee of a Co-operative Society is to be held. Undoubtedly, the society is not forbidden from framing its bye-laws in relation to election programme to its Managing Committee. However, admittedly, in the case in hand, no such provision has been made in the bye-laws of the Petitioner-society. Being so, as the matter stands, the society is governed by the provision of Rule 60 of the said Rules, and, as already seen above, it specifically provides that in relation to the election programme of a Managing Committee, a Returning Officer can be entrusted with the function upto the counting of votes and not beyond it. The announcement of results has necessarily to be done by the President of the society in terms of Sub-rule (7) of Rule 60 of the said Rules. The contention was sought to be raised that Section 92(1)(d) speaks of "the declaration of the result of the election", whereas, Rule 60(7) speaks "be announced" by the President. Undisputedly, the expression "declaration of results" or "result of voting shall be announced" is not defined either in the said Act or in the said Rules. The new Lexicon Webster Dictionary defines the term "announce" to mean to make known publicly or formally. The Oxford Dictionary defines the term "announce" to mean deliver news, to make public or official intimation to proclaim. The expression "announcement" is defined in the Oxford Dictionary to mean an action of making public or official notification. The term "declare" is defined in the new Lexicon Webster Dictionary to mean announce, to pronounce, to affirm, and in the new Oxford Dictionary, the same is defined to mean to make known, to state in detail, to recount, to relate, to make known, or state publicly'. Apart from the above dictionary meaning, the term in a statutory provision has always to be understood in the context in which it has been used. Section 92(1)(d), undoubtedly, speaks of limitation period of two months from the date of declaration of results of the election as the period within which the dispute regarding the election to a Managing Committee could be raised. The said provision however nowhere discloses that the declaration of results spoken of under the said provision relates to final statement drawn by the Returning Officer regarding the results of the election. On the other hand, the said rules specifically provide that the announcement of the final result of the election should be made by the President of the society. In other words, the official announcement having sanctity in law in relation to the result of the election for the Managing Committee has necessarily to be by the President of the Society, otherwise, it cannot be said to be the declaration of results in accordance with the provisions of law. Viewed from this angle, the term "declaration" in Section 92(1)(d) has to be construed as a valid and lawful declaration in terms of the provisions of law, and, therefore, it has to be by the President of the Society. This is also evident from Rule 60(6) which specifically provides that the President can take necessary steps for issuance of ballot papers and counting of votes, thereby it means that the function upto counting of votes can be entrusted to some other person but final result of the election has to be announced and declared by the President of the Society under Rule 60(7) of the said Rules.

13. The fallout of the above discussion is that the election of Managing Committee of a Co operative Society, except in cases of the notified societies or specified societies, the provisions of Rule 60 would apply in the matter of such elections, and declaration of the results will have to be made by the President of the Society in accordance with the Rule 60(7) of the said Rules unless the Bye-laws of such Society prescribe any other specific mode or procedure.

14. The learned Single Judge of this Court in The P & T Central Co-operative Society's case (supra) while dealing with the provisions contained in Section 94(3)(c) read with Order 1 Rule 10 of the Code of Civil Procedure had observed that "Considering the detailed provisions made with regard to the limitation and procedure, it was evident that the dispute should be raised in respect of the election within two months from the date of the declaration of the result of the election and if any necessary party is to be added to the dispute, he should be added within two months from the date of the declaration of the result of the election; otherwise dispute would be rendered improperly constituted by the omission to join the necessary party." Apparently, the ruling is totally on the different issue and has no application to the point for consideration in the matter in hand. It is not in dispute that there is a period of limitation prescribed for raising of dispute regarding the election results. The point for consideration relates to the provision of law relating to the declaration of result of election to the Managing Committee of a Society other than specified or notified one, and not to the question as to whether there is limitation period prescribed for referring such dispute. Another decision of the learned Single Judge in Pundalik Mahadeo Ingole and Ors. v. Sidheswar Tukaram Uparkar and Ors., reported in 1987 Mah.L.J. 470 is on the point of power of the Returning Officer to declare the results of the elections. However, that was a case where the bye-laws of the Society specifically provided for the manner in which the Managing Committee was to be elected and the regulation in that respect empowered the Returning Officer to declare the results after counting of votes. As already observed above, in case of the bye-laws specifically empowering the Returning Officer to declare the results of the election, certainly those provisions in the bye-laws would take precedence over the provisions of law contained in Rule 60 of the said Rules, but not otherwise.

15. Undisputedly, in the case in hand, the Returning Officer had recorded on 17th June, 2002 that there were only 11 candidates in the field and the seats for which the election was scheduled to take place were also 11 in number, and that therefore, there was no scope for contest as such. The said recording however cannot be said to be a declaration of the result within the meaning of the said provisions of law contained in Rule 60(7) of the said Rules. As already held above, the announcement of result of the election in accordance with the provisions of law applicable to the society in question, has to be made by its Chairman in the General Body Meeting subsequent to the election. Indeed, even as per the election programme, the announcement of results was to be in the General Body Meeting on conclusion of counting of votes. At the same time, it is a matter of record that no such meeting was held on conclusion of the election programme. Presumably because, as rightly submitted by the learned Advocate for the petitioners, there was no contest left as per the report of the Returning Officer. In such circumstances, the date of declaration of result. for the purpose of counting of period of limitation under Section 92(1)(d) of the said Act, has to be counted from 29th of June, 2002, the day following the day scheduled for counting of votes as per the programme of elections announced prior to the date of elections. In the absence of actual pronouncement of results by the Chairman of the Society in a meeting, that is the only way left, out, to calculate the period of limitation for raising dispute. Besides, as already held above, there are no bye-laws of the Petitioner-society empowering the Returning Officer to declare the results of the election, the said recording by the Returning Officer cannot be said to be a declaration of the election result, prior to 28th June, 2002. Being so, the dispute raised within the period of two months from the date, which was specified as the day for declaration of the result, cannot be said to be beyond the period of limitation prescribed under Section 92(1)(d) of the said Act.

16. In the result, therefore, there is no case for interference in the impugned orders. The Petition therefore fails and is dismissed. Rule is discharged with no order as to costs.