Bombay High Court
Vijayabai Balasaheb Lelkar vs Amol Bapurao Kokane And Others on 24 December, 2013
Bench: S.V. Gangapurwala
1 WP 6587.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6587 OF 2013
Vijayabai Balasaheb Lelkar
and others .. Petitioners
Versus
Amol Bapurao Kokane and others .. Respondents
Shri R. R. Karpe, Advocate for Petitioners.
Shri V. D. Sapkal, Advocate for Respondent Nos. 1 to 3, 20 and
27.
Shri V. D. Hon, Advocate for Respondent Nos. 4 to 16.
Shri Sandeep S. Deshmukh, Advocate for the Respondent No. 17.
Smt. M. S. Patni, A.G.P. for the Respondent No. 18.
Shri Y. S. Choudhari, Advocate for Respondent Nos. 25 & 26.
Shri V. D. Salunke, Advocate h/f Shri S. S. Gangakhedkar,
Advocate for Respondent Nos. 19, 21 to 24
WITH
WRIT PETITION NO. 6537 OF 2013
Anil Yeshwant Kokane and others .. Petitioners
Versus
Amol Bapurao Kokane and others .. Respondents
Shri V. D. Salunke, Advocate h/f Shri S. S. Gangakhedkar,
Advocate for Petitioners.
::: Downloaded on - 06/01/2014 04:10:11 :::
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Shri V. D. Sapkal, Advocate for Respondent Nos. 1 to 3, 19, 22
and 23.
Shri V. D. Hon, Advocate for Respondent Nos. 4 to 16.
Shri Sandeep S. Deshmukh, Advocate for the Respondent No. 17.
Shri Y. S. Choudhari, Advocate for Respondent Nos. 20 & 21.
Shri R. R. Karpe, Advocate for Respondent Nos. 24 to 27.
RESERVED FOR ORDERS ON : 11/12/2013
ORDER PRONOUNCED ON ig : 24/12/2013
CORAM : S. V. GANGAPURWALA, J.
PER COURT :
. 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 bye-laws 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
3 WP 6587.13
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 Co-operative Societies Act
(hereinafter referred as to the "Said Act" for the sake of brevity)
basically challenging the election of the reserved category
members. The Co-operative 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 Co-operative Appellate Court. The Co-
operative 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 Co-operative
Appellate Court.
3. As both the writ petitions are based on common set of facts,
they are decided together.
4 WP 6587.13
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 bye-laws of the society are registered. The amendment
to the bye-laws 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 bye-laws as amended are binding on the
society and its members. As the amendment to the bye-law
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 bye-laws cannot be said to be illegal. If there is no
infringement of bye-laws, 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 bye-
laws existing and certified at the time of election, the same
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cannot be set aside.
C. Though Writ Petition No. 1702/2011 was filed challenging
the bye-law Nos. 9(5), 9(6) and 9(7), High Court did not grant
stay to the said bye-laws. 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 bye-laws. 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
6 WP 6587.13
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 bye-laws 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 bye-laws.
G. Additional disqualification or restriction can be added by
the bye-laws. 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 bye-law 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
7 WP 6587.13
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 bye-laws 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 bye-
laws. In the present case, the elections have been held in
accordance with the bye-laws, 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
8 WP 6587.13
learned Co-operative Court has not set aside their election. No
appeal was filed by the disputants against the order of the Co-
operative Court, still the Co-operative 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 bye-law 9(5), 9(6) and
9(7) which prohibits members of the non borrowing category to
9 WP 6587.13
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 bye-law, 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 Co-
operative Bank reported in AIR 1984 SC 192 and in a case
reported in (1984) 2 SCC 50.
(b) The bye-laws 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. The Co-
operative Appellate Court was justified in setting aside the whole
election, as the same has been affected by the illegality
10 WP 6587.13
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 CO-OPERATIVE
ig SOCIETIES ACT
73-B Reservation of seats on committees of
certain societies for Scheduled Caste,
Scheduled Tribes (or Other Backward
Classes, De-notified, 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 De-notified 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
11 WP 6587.13
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) .......
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 bye-laws existing
then. The writ petition was filed bearing W. P. No. 1702/2011
challenging the amended bye-laws, whereby the non borrowing
12 WP 6587.13
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
resondent-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 bye-laws, 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 staed 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 Co-operative 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, Co-operative
Societies and the District Deputy Registrar, Co-
operative Societies would complete the procedure
after following the necessary procedure as described
under the relevant provisions of the M. C. S. Act and
13 WP 6587.13
rules framed thereunder.
5. During the pendency of the present Petitions,
elections have already been held to the various
Vividh Karyakari Co-operative 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. 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 bye-laws, as stated int eh
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, Co-
operative 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.
14 WP 6587.13
1702/2011 will not have any bearing on election dispute as the
election dispute is based on the conflict between the bye-laws 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 bye-laws 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 bye-laws would
be legal and valid in the teeth of provisions of Sec. 73-B(3) and
73-BBB(3) of the said Act.
12. Perusal of Sec. 73-B(3) and 73-BBB(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. Once these non borrowing
members are given right to vote at the election to the committee,
15 WP 6587.13
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 bye-law 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. Bye-laws are always subordinate to the
statute as well as the Rules. Bye-laws can at the most be said to
be subordinate piece of legislation. The subordinate piece of
legislation cannot supplant the statute. The bye-laws cannot be
given a statutory force, nor it can be said to possess a statutory
flavour. The bye-law not in consonance with the statute cannot
be allowed to prevail. If a statute is silent about a particular
aspect, the bye-laws 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 bye-laws. Bye laws cannot override statutory
provisions. The statutory provisions cannot be rendered otiose
by clause in bye-laws. If the clause in the bye-laws is accepted i.
e. prohibiting the non borrower member to vote for the election to
16 WP 6587.13
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 bye-laws. The said clauses would be
repugnant to the statute. Such bye-laws 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 bye-law if not inconformity with the statute in
order to give effect to the statutory provision, the rule or bye-law
has to be ignored. The statutory provisions has precedence and
must be complied with. The Apex Court further observed that,
the bye-law of a Co-operative Society can at the most have the
status of a Article of association of a Company, governed by the
Companies Act. The bye-laws of Co-operative 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
17 WP 6587.13
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 bye-laws viz-a-viz the
statutory provisions. In a case of Sambha Pikale Vs. The
State of Maharashtra referred supra it was held that, bye-laws
cannot water down the restriction, but they can provide for
additional disqualification. In the present case, the bye-laws 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 bye-law is not faulty. In the
said case, the section or the provision in the Act was silent which
is supplemented by the bye-law. In the present case, the bye-law
is contrary to the provision of statute. Considering the above, I
do not see any error committed by the Co-operative Court in
setting aside the election of the members elected from the
reserved seat, as non borrowing members were deprived to cast
18 WP 6587.13
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 Co-operative Appellate has
exceeded its jurisdiction. The disputants never prayed for setting
aside the election of the members of managing committee from
open category. The Co-operative 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 Co-operative 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
19 WP 6587.13
setting aside the election of members of open category. The other
directions given by the Co-operative Appellate Court have
become redundant. The judgment of the Co-operative Court is
upheld. No costs.
Sd/-
[ S. V. GANGAPURWALA, J. ]
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.
Sd/-
[ S. V. GANGAPURWALA, J. ]
bsb/Dec. 13
