Sandip Vasantrao Lahare vs State Of Maharashtra And Ors.
2004 Latest Caselaw 1432 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition, the petitioner has challenged the constitutional validity of Rule 56-B of the Maharashtra Co-operative Societies Rules, 1961, (hereinafter referred to as the "Rules" for the purpose of brevity) on the ground that the provisions of that rule are contrary to the provisions of Section 27(3-A) of the Maharashtra Co-operative Societies Act, 1960, (hereinafter referred to as the "Act" for the purpose of brevity).

2. The facts necessary for adjudication of the questions raised in this petition stated in brief are :

The respondent No. 3 Wakadi Vikas Karyakari Society Limited, Wakadi, Taluka Rahata District Ahmednagar is a notified society as contemplated by Section 73IC of the Act. It will be called as a notified society for the purpose of clarity and brevity. The petitioner became a Member of the notified society on 27-3-2002 and since then he is the member of the notified society.

3. The last general elections to the Managing Committee of the notified society were held on 28-5-1999. Consequently, the term of five years of the said Managing Committee came to an end on 27-5-2004. As required by Rule 56-B of the Rules, a list of voters was liable to be prepared and was accordingly prepared but it did not show the name of the petitioner as one of the voters. Queries revealed that the petitioner was not so shown because of the Government Circular dated 23-7-2003, according to which, the petitioner did not complete the prescribed period as mentioned in Rule 56-B of the Rules. Being aggrieved by the action of non-inclusion of his name in the voters' list which has defeated his statutory right, the above writ petition was filed by the petitioner. The validity of Rule 56-B of the Rules was challenged as it is contrary to the provisions of Section 27(3-A) of the Act.

4. When this petition came up for hearing the learned Counsel appearing on behalf of the petitioner submitted that the provisions of Rule 56-B are liable to be quashed as they are ultra vires or contrary to the provisions of Section 27(3-A) of the Act. He was also fair enough in pointing out that there is a Division Bench judgment in Writ Petition No. 3730 of 2003 decided on 17-11-2003 in which it is held that the period of 120 days mentioned in Rule 56-B(2) of the Rules is liable to be calculated in addition to the period of two years mentioned in Section 27(3-A) of the Act.

5. A Division Bench of this Court, which heard this petition, was enable to agree with the view taken by the earlier Division Bench with the result that the matter was placed before My Lord, the Honourable the Chief Justice for appropriate orders for referring the matter to a Larger Bench.

6. We have heard Shri. P. M. Shah, learned Senior Advocate appearing on behalf of the petitioner along with his instructing Advocates, the learned Assistant Government Pleader for the respondents No. 1 and 2 and also the learned Counsel for the respondent No. 3. The factual aspect in this case as narrated above is not disputed. However, the Division Bench while making this reference did not frame any question for being answered by a Larger Bench. In our opinion, it would be better if the specific questions are framed which should be answered by this Bench so as to lay down correct interpretation of the provisions of Section 27(3-A) and Rule 56-B of the Rules. In our opinion, the following questions would meet the challenges levelled against the provisions as mentioned above.

(i) What is the date upto which a person/member is required to complete two years to be eligible for inclusion of his name in the voters' list prepared under Rule 56-B of the Rules?

(ii) How the period of 'two years' mentioned in Section 27(3-A) as the period of eligibility is to be counted?

(iii) Whether the period of 120 days mentioned in Rule 56-B is liable to be calculated in addition to the period of 'two years' as mentioned in Section 27(3-A) of the Act?

We will proceed to analyse the provisions of the section and the rule in order to arrive at correct answers to the above-framed questions.

7. Section 27 provides for voting powers of members of various societies mentioned in that section. It includes powers of voting available to a member of notified society. This was brought about by the amendment to Section 27 by Maharashtra Act No. XXXXI of 2000 whereby Sub-sections (3) and (3-A) were substituted. We are concerned with the provisions of Sub-sections (3) and (3-A) of Section 27 of the Act in the present case. The petitioner, as we have noted above, was enrolled as a member of the respondent No. 3 notified society on 27-3-2002. The elections of the society were due from 28-5-2004. The provisional list of voters as contemplated by Rule 56-B was, therefore, liable to be prepared from 27-11-2003. The contention of the petitioner is that he had completed 'two years' as contemplated by Section 27(3-A) for elections to the Managing Committee of the notified society to be held after 28-5-2004 and was, therefore, liable to be included in the provisional voters list and the preparation of such a list should have been commenced on 27-11-2003.

8. It will be necessary, in our opinion, to consider the provisions of Sub-sections (3) and (3-A) of Section 27 of the Act in extenso. They are reproduced as under :

"27.(1) .....

(2) .....

(3) A society, which has invested any part in the shares of any federal society may appoint one of its members to vote on its behalf in the affairs of that federal society; and accordingly such member shall have the right to vote on behalf of the society;

Provided that, any new member of a federal society shall be eligible to vote in the affairs of the federal society only after the completion of the period of three years from the date of its investing any part of its fund in the shares of such federal society;

Provided further, that, where the election is to a reserved seat under Section 73B, no person shall have more than one vote.

(3A) An individual member of a society shall not be eligible for voting in the affairs of the society for a period of two years from the date of his enrolment as a member of such society."

We are concerned in this petition with the voting powers of members of the notified society as contemplated by Section 27(3-A) of the Act as quoted above. We have to consider whether the petitioner, on interpretation of these provisions, is entitled to vote under Section 27 of the Act for elections to the Managing Committee of respondent No. 3 notified society.

9. We should, therefore, note the operation of Section 27 of the Act in the matter of voting powers of members of notified society. Sub-section (3) talks of a society which has invested in a federal society and provides for appointment of one of its members to vote on its behalf in the elections to the Managing Committee of the federal society. The proviso to Sub-section (3) of Section 27 of the Act makes such a right operative after three years from the date of investment in the federal society. It will be thus seen from the provisions of Sub-section (3) of Section 27 that a member-society of a federal society acquires a right to vote in the elections to the Managing Committee of Federal Society only after it completes a period of three years from the date of its investment in the federal society and the voting right is to be exercised by the investing society by nominating one of its members as its nominee for the purpose of elections of the Managing Committee of the federal society.

10. It is then Sub-section (3-A) provides as to the manner in which such member of the investing society becomes eligible to vote and it provides that he would be so eligible only after completion of two years from the date of his enrolment in the investing society. The provisions of Sub-sections (3) and (3-A) of Section 27 of the Act, therefore, deal with the voting powers of a member of a society which has invested any part of its funds in the shares of a federal society and provides for the voting rights of its members. The voting rights considered by these two sub-sections are voting rights of the members of a society investing some funds in the federal society. Such a society is a notified society and the provisions talk of a right to vote of any new member society of a federal society. An individual member of a society contemplated by Sub-section (3-A) is, therefore, a member of a society as described in Sub-section (3) of Section 27 of the Act. An individual member of a notified society, therefore, may, in a given situation, be eligible for voting in the affairs of that society namely; notified society and also eligible to be a voter in the elections to the Managing Committee of a federal society mentioned in Sub-section (3) of Section 27 of the Act. This is because the list of voters of a federal society contemplated by Sub-section (3) of Section 27 will include the names of members who are nominated or appointed for the purpose of exercising right to vote under Sub-section (3) of Section 27 of the Act. There would also be a list of voters prepared for the purpose of elections to the Managing Committee of the society mentioned in Sub-section (3-A). To put it explicitly, a member of a notified society will be eligible to vote in the affairs of that society after a period of two years from the date of his enrolment is completed by him. Such a member can be nominated or appointed by such notified society as its representative to vote on its behalf in the affairs of federal society, provided always that member society of a federal society has completed three years after its investing any part of its funds in the shares of such federal society.

11. In the present case, we are concerned with the elections to the notified society. Chapter VA of the Rules introduced by the amendment deals with the elections of the notified society. Rule 56-A gives the manner of holding elections to the notified society. Rule 56-B provides for making of a provisional voters' list which is finalised under subsequent sub-rules. The petitioner is alleging infringement of his right to vote to the respondent No. 3 which is a notified society. This infringement has occurred, according to the petitioner, due to misreading of the provisions of Rules 56-B of the Rules and it the rule is correct, then Rule 56-B, according to the petitioner, it ultra vires the provisions of Section 27(3-A) of the Act. The provisions of Sub-rule (1) of Rule 56-B of the Rules reads as under :

"56-B. Provisional list of voters. -- (1) A provisional list of voters shall be prepared by every notified society in the year in which the election of such society is due to be held. The persons who have completed minimum two years as members from the date of their enrolment, shall be included in the provisional list. If different constituencies are provided in the bye-laws, the names of voters shall be arranged constituency-wise as laid down in the bye-laws."

Sub-rules (2), (3) and (4) of Rule 56-B then provide the manner in which the lists are to be prepared, objections to be taken to such list and finalisation of the voters' list. In this case, we are concerned with the above-quoted provisions of Sub-rule (1) of Rule 56-B of the Rules. From the perusal of said sub-rule, as quoted above, it will be seen that a provisional voters' list is to be prepared by every notified society in the year in which the election of such a society is due to be held. Sub-rule (1) itself provides that persons who have completed minimum two years as members from the date of their enrolment shall be included in the provisional list of voters. So the provisions of Section 27(3-A) of the Act were directly reflected in this sub-rule. What has been done by the Circular dated 23-7-2003 is that this provision of two years mentioned in Sub-rule (1) of Rule 56-B is read as in addition to the period of 120 days mentioned in Sub-rule (2) of Rule 56-B. The provisions of Sub-rule (2) of Rule 56-B requires Chief Executive of notified society to deliver four copies of the authenticated provisional lists of voters to the Registrar, 120 days before the date of expiry of the term of the Committee. In the instant case, therefore, the Chief Executive of the notified society was required to supply the authenticated provisional list of voters as contemplated by Sub-rule (2) of Rule 56-B to the Registrar by 27-11-2003 since the term of the Managing Committee of the notified society was to expire on 28-5-2004. It must be noted that Rule 56-B nowhere provides that the provisional list of voters to be delivered under Sub-rule (2) of Rule 56-B cannot be given before four months from the date of expiry of the terms of the Committee. In any given situation, it may be well within law for Chief Executive of a notified society to submit the provisional list of voters within six months prior to the date of expiry of term of the Committee. The period of 120 days mentioned in Sub-rule (2) of Rule 56-B of the Rules is, therefore, the minimum period which must be made available to the Registrar for taking further actions as contemplated by the Rules. The period of eligibility mentioned in Sub-rule (1) of Rule 56-B of the Rules namely; two years has, therefore, nothing to do with the period of 120 days as prescribed in Sub-rule (2) for delivery of authenticated provisional list of voters by the Chief Executive of the Society to the Registrar as contemplated by said sub-rule.

12. In our opinion, the provisional list under Sub-rule (1) of Rule 56-B of the Rules is to be prepared in the manner indicated therein. As we are concerned in this case with the elections to the Managing Committee of respondent No. 3 notified society, the provisional list of voters will have to be prepared by the Chief Executive of the persons who are the members of society for a period of two years and more as voters for the said elections. He has to submit that list to the Registrar at least 120 days before the date of expiry of term of the Managing Committee. Inclusion or non-inclusion of name of a member of the society as a voter would, therefore, depend only on Sub-section (3-A) of Section 27 of the Act and Rule 56-B(1) of the Rules. The period of two years is mentioned both in Sub-section (3-A) and Sub-rule (1) and on its completion that the person becomes eligible to vote. Therefore, every person who has completed two years from the date of his enrolment as member of the notified society is eligible to vote both according to Section 27(3-A) and Rule 56-B(1) of the Rules. The period of 120 days mentioned as minimum for submission of the provisional list so prepared has nothing to do with the period of two years mentioned both in the sub-section and sub-rule as referred to above. The circular which so requires is obviously contrary to the intent of both Sub-section (3-A) of Section 27 and Sub-rule (1) of Rule 56-B of the Rules and it is, therefore, illegal and not the provisions of Sub-rule (1) of Rule 56-B as contended before us. In our opinion, the provisions of Rule 56 B(1) are not contrary to Section 27(3-A) but are in conformity with the said provisions. There is, therefore, no reason to quash Sub-rule (1) of Rule 56-B of the Rules for any inconsistency. What is liable to be quashed and set-aside is the Circular dated 23-7-2003.

13. In our opinion, this being the correct position in law, the observations in some other judgment including one mentioned above to the contrary do not lay down correct proposition of law. We answer the questions framed above as under :

         Questions                                      Answers
(i) What is the date upto which a                 The date by which the period of two years
      person/member is required to complete       mentioned in Section 27(3-A) of the Act,
      two years to be eligible for inclusion of   should be completed has to be the date on
      his name in the voter's list prepared       which the elections become due on
      under Rule 56-B of the Rules ?              completion of the term of the Managing
                                                  Committee.
(ii) How the period of 'two years'                The period of two years mentioned in
      mentioned in Section 27(3-A) as the         Section 27(3-A) is to be counted from the
      period of eligibility is to be counted ?    date of enrolment to the date when
                                                  elections to the Managing Committee of
                                                  the notified society become due.
(iii) Whether the period of 120 days              The period of 120 days mentioned in Rule
      mentioned in Rule 56-B is liable to be      56-B(1) is not liable to be calculated in
      calculated in addition to the period of     addition to the       period of two years
      two years as mentioned in section           mentioned in Section 27(3-A).
      27(3-A) of the Act ?
 

14. As a result of our answering the questions raised in this petition in the manner mentioned above, the question that arises is whether the petition should be kept pending for adjudication in accordance with the propositions of law laid down by us before appropriate Division Bench for decision. In the circumstances of the case, the petition can be disposed of by us. In our opinion, what is sought by the petitioner basically is a declaration that he is entitled to be a voter. In view of the findings given by us, it is obvious that the petitioner is entitled to such a declaration. It is also obvious that the circular dated 23-7-2003 is not in keeping with the law laid down by us and consequently it is liable to be struck down.

15. In the result, the writ petition succeeds and is allowed. The Circular dated 23-7-2003 is quashed. It is hereby declared that the petitioner is entitled to be enrolled as voter as per Rule 56-B(1) of the Rules as per the propositions of law laid down by us. There shall be no order as to costs.