Bombay High Court
Nitin Bhanudas Autade vs The State Of Maharashtra And ... on 8 March, 2016
Bench: S.P. Deshmukh
1 WP-2351.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
WRIT PETITION NO. 2351 OF 2016
Nitin s/o Bhanudas Autade,
Age 50 years occup. Agril.
& business, r/o Pohegaon,
Tq. Kopargaon, Dist.Ahmednagar .. Petitioner
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director ... Respondents
WITH
CIVIL APPLICATION NO. 2631 OF 2016
(for intervention)
Jayant s/o Ramrao Rohamare.
Age major, occup. Agril., ... Applicant/
Tq. Kopargaon, Dist. Ahmednagar Intervenor
versus
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2 WP-2351.16
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4.
The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director
6. Nitin s/o Bhanudas Autade,
Age 50 years occup. Agril.
& business, r/o Pohegaon,
Tq. Kopargaon, Dist.Ahmednagar .. Respondents
WITH
WRIT PETITION NO. 2488 OF 2016
Bhausaheb s/o Changdeo Kolpe
Age 50 years, occup. Agril.
R/o Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar .. Petitioner
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
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3 WP-2351.16
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director .. Respondents
WITH
CIVIL APPLICATION [STAMP] NO. 7749 OF 2016
(for intervention)
Meenanath Rakhma Bargal,
Age 55 years, occup. Agril.
R/o Vadgaon, Tq. Kopargaon, .. Applicant /
Dist. Ahmednagar Intervenor
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
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4 WP-2351.16
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director
6. Bhausaheb s/o Changdeo Kolpe
Age 50 years, occup. Agril.
R/o Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar .. Respondents
ig WITH
WRIT PETITION NO. 2489 OF 2016
Sanjay s/o Chandrabhan Ghule,
Age 38 years, occup. Agril.
R/o Kumbhari, Tq. Kopargaon,
Dist. Ahmednagar .. Petitioner/
Appellant
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
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5 WP-2351.16
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director .. Respondents
WITH
CIVIL APPLICATION [STAMP] NO. 7750 OF 2016
(for intervention)
Suryabhan s/o Babanrao Kolpe
Age 38 years, occup. Agril.
R/o Kolpewadi Tq. Kopargaon, .. Applicant /
Dist. Ahmednagar Intervenor
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director
6. Sanjay s/o Chandrabhan Ghule,
Age 38 years, occup. Agril.
R/o Kumbhari, Tq. Kopargaon,
Dist. Ahmednagar .. Respondents
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WITH
WRIT PETITION NO. 2490 OF 2016
Minakshi w/o Subhash Jondhale,
Age 43 years, occup. Agril.,
R/o Pohegaon, Taluka Kopargaon,
District Ahmednagar .. Petitioner/
Appellant
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director .. Respondents
WITH
CIVIL APPLICATION [STAMP] NO. 7751 OF 2016
(for intervention)
Mahalsabai Kakasaheb Javale
Age 45 years, occup. Agril.,
R/o Sonewadi, Tq. Kopargaon, .. Applicant /
Dist. Ahmednagar Intervenor
versus
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1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director
6. Minakshi w/o Subhash Jondhale,
Age 43 years, occup. Agril.,
R/o Pohegaon, Taluka Kopargaon,
District Ahmednagar .. Respondents
WITH
WRIT PETITION NO. 2491 OF 2016
Sarjerao s/o Changdeo Kadam
Age 49 years, occup. Agril.,
R/o Rawande, Tq. Kopargaon, .. Petitioner/
District Ahmednagar Appellant
versus
1. The State of Maharashtra
Through the Secretary, Co-operation
Department, Maharashtra State,
Mantralaya, Mumbai - 32
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8 WP-2351.16
2. The Regional Joint Director (Sugar)
Ahmednagar and Assistant Registrar,
Co-operative Societies, Ahmednagar,
Trilok Chambers, Lal Taki Road,
Ahmednagar
3. The Returning Officer for Elections of
Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautam Nagar
and Deputy Collector No.3, Ahmednagar
4. The State Co-operative Election Authority
Maharashtra State, Old Central Building,
Pune - 411 001
5. Karmaveer Shankarrao Kale Sahakari
Sakhar Karkhana Ltd., Gautamnagar,
Post Kolpewadi, Tq. Kopargaon,
Dist. Ahmednagar, through its Managing
Director .. Respondents
----
Mr Niteen V. Gaware Patil,Advocate for petitioners in all writ petitions
Mr. V. G. Shelke, Assistant Govt. Pleader for respondents no. 1 in
writ petitions no. 2351 of 2016, 2488 of 2016 and 2489 of 2016.
Mr. D. R. Korde, Assistant Govt. Pleader for respondent no. 1 in writ
petitions no. 2490 of 2016 and 2491 of 2016
Mr. S. K. Kadam, Advocate for respondents no. 2 to 4
Mr. R. N. Dhorde, senior advocate i/b Mr. V. R. Dhorde, advocate for
respondent no. 5 in writ petitions no.2351 of 2016, 2488 of 2016,
2489 of 2016 and 2490 of 2016 and intervenor in civil application
No. 2631 OF 2016 in writ petition no. 2351 of 2016
Mr. Vinayak D. Hon, senior advocate i/by Mr. A. V. Hon, advocate for
respondent no. 5 in writ petition no. 2491 of 2016
Mr. R. L. Kute, Advocate for intervenor in C.A. [stamp] No. 7749 of
2016 in writ petition no. 2488 of 2016, C.A. [stamp] NO.7750 of
2016 in writ petition no. 2489 of 2016, C.A. [stamp] No. 7751 of
2016 in writ petition no. 2 490 of 2016
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-----
CORAM : SUNIL P. DESHMUKH, J.
8TH MARCH, 2016
ORAL JUDGMENT:
1. Heard learned counsel for the parties extensively.
2. As far as civil applications for intervention are concerned,
having regard to the contents of the same and their relevance,
those stand granted.
3.
Rule. Rule made returnable forthwith and heard finally with
consent of parties.
4. Learned counsel Mr. Gaware appearing on behalf of the
petitioners vehemently submits, impugned orders, one passed by
the returning officer - respondent no. 3 dated 15-02-2016 rejecting
nominations of petitioners and the other passed by the appellate
authority- Regional Joint Director (Sugar) and Assistant Registrar,
Co-operative Societies-respondent no. 2 on 26-02-2016, are
unsustainable and cannot be maintained in law on various counts,
inter alia, primarily for the reason that both the authorities have
failed to take into account that the bye-laws would have no efficacy
vis-a-vis the statutory provisions, particularly putting emphasis on
provisions of section 73CA(1) (ii-a) of the Maharashtra Co-
operative Societies Act, 1960 (for brevity, "The MCS Act").
10 WP-2351.16
5. Learned counsel further states that the MCS Act has under
went amendments after introduction of part IX B by 97 th
amendment to the Constitution of India. He submits that several
provisions have been introduced, incorporated and amended in
order to bring the MCS Act in tune with the Constitution. He
submits that on amendments to the MCS Act, section 26 as
amended, introduces into membership of society, broadly two
categories, namely, active members and non active members. He
further refers to definition of active member as given in section 2
(19) (a-1) of the MCS Act which reads:
" (a-1) "active" member means a member who participates in the
affairs of the society and utilises the minimum level of services or
products of that society as may be specified in the by-laws. "
He also refers to section 26 (2) (b) of the Act, which reads
thus;
" 26 (2) (b) to utilise minimum level of services at least once in a
period of five consecutive years as specified in the by-laws of the
society.
Provided that, a member who does not attend at least one
meeting of the general body as above and does not utilise minimum
level of services at least once in a period of five consecutive years, as
specified in the by-laws of such society shall be classified as non-
active member.
Provided further that, when a society classifies as a non-active
member, the society shall, in the prescribed manner communicate such
classification to the concerned member within thirty days from the date
of close of the financial year.
11 WP-2351.16
Provided also that, a non-active member who does not attend at
least one meeting of the general body and does not utilise minimum
level of services as specified in the by-laws, in next five years from the
date of classification as non-active member, shall be liable for
expulsion under section 35;
Provided also that, a member classified as non-active member
shall, on fulfillment of the eligibility criteria as provided in this sub-
section be entitled to be re-classified as an active member;
Provided also that, if a question of a member being active or
non-active member arises, an appeal shall lie to the Registrar within a
period of sixty days from the date of communication of classification;
provided also that, in any election conducted immediately after
the date of commencement of the Maharashtra Co-operative Societies
[Amendment] Act, 2013, all the existing members of the society shall
be eligible for voting, unless otherwise ineligible to vote. "
6. Learned counsel further refers to approved and registered
bye-laws of 2014 and particularly to the concerned bye-law of as
quoted at page 44 of of the memorandum of writ petition, defining
active producer member. It reads:
" fdz;k'khy mRiknd lHkkln &
1½ ekxhy ikp xkGi gaxkekiSdh fdeku ,dk gaxkekr lHkklnkus
/kkj.k dsysY;k HkkxkP;k izek.kkr laLFksl uksan dsysyk Ål
iqjoBk dsyk vlyk ikfgts-
2½ laLFksP;k ekxhy lyx ikp o"kkZe/khy loZlk/kkj.k lHkkaiSdh
fdeku ,dk loZlk/kkj.k lHksl gtj vlyk ikfgts- ek= T;k
lHkklnkaph vuqifLFkrh laLFksP;k vf/keaMGkP;k okf"kZd
loZlk/kkj.k lHksus {kekfir dsyh vlsy v'kk lHkklnkaps
laca/kkr gh ckc ykxw gks.kkj ukgh-
12 WP-2351.16
3½ fdz;k'khy lHkklnkal dkj[kkU;kP;k lapkyd eaMG fuoM.kwdhr
ernkukpk vf/kdkj jkghy-
4½ egkjk"Vª lgdkjh laLFkk vf/kfu;e 1960 ps dye 27 ¼10½
e/khy rjrqnhuqlkj laLFksP;k Fkdckdhnkjkl ernkukpk
vf/kdkj jkg.kkj ukgh- "
7. According to learned counsel, having regard to aforesaid
bye-law and taking into account that there is no dispute about the
fact that the petitioners had, in fact, supplied sugarcane in the co-
operative years 2010-11 and 2014-15, they could not have been
disqualified with reference to bye-law no. 28(2) prescribing supply
of sugarcane by a member of the society for at least three years
during the period of five consecutive years preceding the elections
as a requirement/qualification for candidature to the election.
8. He submits that having regard to the provisions referred to
hereinabove, it cannot be gainsaid that the petitioners are active
members. According to him, having supplied sugarcane in the year
2014-15, petitioners qualify as members with reference to section
26(2)(b) of the Act, having utilised services at least once in a period
of five consecutive years preceding the election as specified in the
bye-laws of the society. According to learned counsel, there is no
room to consider that the petitioners can be treated as non active
members. Under the provisions of the statute and rules, right to
contest is available to them and same cannot be taken away,
affected or negated, diminished and undermined under bye-law no.
28 (2).
13 WP-2351.16
9. Mr. Gaware goes on to submit that the provisions of section
73CA of the Act refer to disqualifications for membership of a
committee and contends that having regard to section 73CA (1)
(ii-a), a member can be disqualified as non active member only
with reference to provision under section 26(2) of the MCS Act.
10. In his submission, petitioners cannot be termed as non
active members and as such having regard to definition under
section 2 (19) (a-1), section 26 of the MCS Act and the relevant
bye-law
reproduced hereinbefore, rejection of their nominations
by invoking bye-law no. 28(2) is absolutely incorrect and
erroneous. Learned counsel submits that bye-law no. 28(2) would
not be able to efficaciously stand the test when it is pitted against
statutory provisions under the MCS Act.
11. For aforesaid proposition, learned counsel Mr. Gaware refers
to a clutch of decisions, as according to him, bye-law no. 28(2)
exceeds stipulations under statutory provisions and in such a case,
statutory provisions would prevail and the bye-law would have to
be ignored.
12. Firstly, learned counsel refers to decision of the Supreme
Court in the case of Babaji Kondaji Garad vs Nasik Merchants Co-
operative Bank Ltd. reported in AIR 1984 SC 192 and highlights
paragraph no. 15 from the same which reads as under:-
14 WP-2351.16
" 15. Section 73-B provides a legislative mandate. Rule 61 has a
status of subsidiary legislation or deleged legislation. Bye-law of a co-
operative society can at best have the status of an Article of
Association of a company governed by the Companies Act, 1956 and
as held by this Court in Co-operative Central Bank Ltd. v. Addl.
Industrial Tribunal, Andhra Pradesh, (1970) 1 SCR 205 :(AIR 1970 SC
245) the bye-laws of a co-operative society framed in pursuance of the
provision 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. Now, if there is
any conflict between a statute and the subordinate legislation, it does
not require elaborate reasoning to firmly state that the statute prevails
over subordinate legislation and the bye-law has to be ignored. The
statutory provision has precedence and must be complied with.
Further the opinion of the Deputy Registrar as expressed in his
circular dated February 1, 1979 and his letter dated June 4, 1979 has
no relevance because his lack of knowledge or misunderstanding of
law as expressed in his opinion has no relevance. The High Court
relying upon the aforementioned two documents observed as under:
" There is no inconsistency between S. 73-B and the bye-laws
because even the Government has construed Section 73-B in
such manner that even though the bye-laws are not amended
and reserved seats remain unfilled by election the same can be
filed up by co-option. "
With respect, we find it difficult to subscribe to this untenable
approach that a view of law or a legal provision expressed by a
Government Officer can afford reliable basis or even guidance in the
manner of construction of a legislature measure. It is the function of
the Court to construe legislative measures and in reaching the correct
15 WP-2351.16
meaning of a statutory provision, opinion of executive branch is hardly
relevant. Nor can the Court abdicate in favour of such opinion. "
13. Mr. Gaware further refers to a decision in the case of Pundlik
vs State of Maharashtra, reported in 2005 DGLS (Soft) 652 = 2005 AIR
(SC) 3746 which was a case about communication of change in the
name of representative and delegate of a member society to federal
society holding that the action of the respondents was within four
corners of rule 5(2) of the Maharashtra Specified Co-operative
Societies Election to Committee Rules, 1971. It was held in said
case that the high court had erred in not allowing the petition and
granting the relief to appellant which had changed delegate. This
very case also had taken into consideration the decision in the case
of Ahmednagar Zilla Sahakari D.V. And P. Sangh vs. State of Maharashtra
reported in 2004 (1) SCC 133 in which it has been held that if voters
list has been prepared with reference to non existent rules, it would
be illegal and high court could interfere under article 226 of the
constitution of India.
14. In the course of arguments, learned counsel Mr. Gaware
submitted that the decision in the case of Sant Sadguru Janardan
Swami (Moingiri Maharaj) Sahakar Dugdha Utopadak Sanstha vs State of
Maharashtra, reported in (2001) 8 SCC 509, can be said to have
undergone a little dilution in certain facts as stated hereinabove and
as such, petitions herein cannot be foreclosed from consideration
16 WP-2351.16
with reference to decision in Sant Sadguru Janardan Swami (Moingiri
Maharaj) Sahakar Dugdha Utopadak Sanstha's case.
15. On the other hand, learned senior advocates Mr. R.N. Dhorde
and learned senior advocate Mr. V.D. Hon for respective
respondents no. 5 - Karkhanas submit that petitions are wholly
misconceived; cannot be maintained on several grounds and that
the elections are already over except in one petition; the tenor
emerging from provisions of law would have to be taken into
account and legislative intent would be required to be read from the
same.
16. They submit, considerations and qualifications for
membership of the society and those for the membership of
committee may differ. It is submitted that such a situation is no
longer res-integra. Further, qualification over and above membership
of society for membership of the committee can be prescribed as
contained in bye-law 28, particularly bye-law no. 28(2) in the
present case. Learned counsel submit these are the registered
bye-laws having sanctity of law and have uniform application in
respect of all the specified societies in the State and as such,
present petitioners' cases cannot be segregated and given different
or special treatment. There is nothing wrong in putting
extra/additional conditions of qualification for candidature to
contest election to managing committee.
17 WP-2351.16
17. Learned senior counsel refer to phraseology of section 73 and
particularly underscore and emphasize the words ' bye-laws '
appearing therein. Learned senior counsel then refer to section
73CA(1) which for ready reference, is reproduced hereinbelow;
" 73 CA [Disqualification of committee and its members].
(1) Without prejudice to the other provisions of this Act or the
rules made thereunder in relation to the disqualification of being
member of a committee, no person shall be eligible for being
appointed, nominated, elected, co-opted or, for being a member of a
committee, if he-,
and highlight the opening words as appearing in bold letters.
18. It is submitted that it cannot be said that bye-law no. 28 (2)
is in any way inconsistent with either section 26(2)(b) or, for that
matter, section 73CA (1) (ii-a) of the Act. The provisions under
section 73CA shall be read in addition to and not in derogation of
disqualifications as may be incurred under the other provisions of
the Act and rules, including bye-laws, as referred to in section 73
of MCS Act. The committee has to be constituted in accordance with
the Act, the rules and the bye-laws.
19. In order to support his submissions, senior advocate Mr.
Dhorde refers to and places reliance on a decision in the case of
Minakshi Murlidhar Chodke vs The Additional Commissioner, reported in
1996 (4) ALL MR 532. This decision, according to learned counsel,
would govern the present situation, having been given in almost
similar set of facts and circumstances. It is submitted that in said
18 WP-2351.16
case, the contention of the petitioner was that the bye-laws
provided certain qualifications which could not be said to be
covered by the provisions of section 144E of the MCS Act as was
then subsisting under the caption " Disqualification for
membership ". The citation in the case of Babaji Kondaji Garad vs.
Nasik Merchants' Co-operative Bank Ltd., AIR 1984 SC 192 pressed into
service by learned counsel Mr. Gaware for petitioners has been
referred to and considered in said case and in paragraph no. 8,
paragraph no. 20 from decision in Jairam vs The State of Maharashtra,
reported in 1996 CTJ 253 has been quoted which reads as under:
" 8. This Court in Jairam's case (cited supra) has held thus :
" 20. While considering the effect of such bye-law which
provides further qualifications than the qualification laid down
under Section 73FF of the Maharashtra Co-operative Societies
Act, 1960 and Rule 58 (1) of the Maharashtra Co-operative
Societies Rules, 1961, it is observed learned Single Judge of
this Court, in the case of Sambha s/o. Gangaram Pikale v. The
State of Maharashtra and others, (Cited supra):
' It cannot be said that no additional qualifications can
be prescribed under the rules. It would be within the
jurisdiction of the Registrar to examine whether the bye-
laws including such qualifications are proper and
reasonable. Since the present bye-law is approved by
the Registrar, it can well be presumed that the Registrar
has accepted its necessity.' ''
19 WP-2351.16
20. While dealing with conflict between statute, rules made
thereunder and the bye-laws, in paragraph no. 9 in Minakshi's case
supra, it has been held thus;
" 9. It is true if there is any conflict between a statute or the rules
framed thereunder and the bye-laws of the society, the bye-laws have
to be ignored and cannot prevail. But whether the bye-laws framed by
the society are not inconsistent with the statutory provisions of the
rules framed thereunder and the said bye-laws provide for eligibility of
a candidate to contest as director of the committee of the society, the
said bye-laws cannot be ignored and have to be considered to find out
whether such person is qualified or not. Bye-law No. 31 of the Bye-
laws of the respondent no. 4 society which provides that the member
shall not be eligible to be elected as director unless (i) he is a member
of the bank for continuous two years and had maintained deposit
account with the Bank for at least one continuous year on 31st March
of the year immediately preceding the year in which the elections are
to be held and (ii) has not incurred any disqualification under the
provisions of the Act, Rules and the bye-laws, cannot be said to be
inconsistent in any manner with Section 144E of the Maharashtra Co-
operative Societies Act and, therefore, the said bye-laws are required
to be taken into consideration while finding out whether a particular
member is qualified to contest the election as director or not and the
Returning Officer having considered the qualifications of the present
petitioner by referring to bye-law no. 31 of the bye-laws of the
respondent no. 4 society, cannot be said to have committed any error
of law. The additional Commissioner also therefore did not commit
any error in rejecting the appeal filed before him under section 152-A
of the Maharashtra Co-operative Societies Act. ''
20 WP-2351.16
21. It is, therefore, submitted by learned counsel that there is
no substance in the writ petitions and those are liable to be
rejected in the face of factual position that it cannot be said that
petitioners had supplied sugarcane to the society for three years in
last five consecutive years preceding the elections. Stipulations for
candidature under bye-law no. 28 (2) so long as are not subjected
to challenge under appropriate proceedings, those in the present
case would prevail and hold the field as far as qualifications for
candidature for membership of the committee of the society is
concerned.
22. Learned counsel Mr. Kute appearing for intervenors submits
that petitions are unsustainable on one additional ground that all
the candidates whose nominations have been accepted are not
made party either before appellate authority or in present writ
petitions. For said purpose, he presses into service a decision
rendered by Hon'ble single judge of this court in the case of
Vijaysingh Krishnarao Parbat vs. Returning Officer, reported in 2003 (2)
ALL MR 523, and particularly relies on paragraph no. 9 therefrom
which reads as follows;
" 9. As rightly submitted by the learned Advocates for the
respondents, the Division Bench has already held that in order to
enable the party to challenge the decision of the Returning Officer as
regards the rejection of the nomination paper, all other candidates are
necessary parties to the proceedings and, admittedly, in the case in
hand neither at the stage of the appeal under Section 152A of the said
21 WP-2351.16
Act in this proceedings all the candidates have been joined as the
parties. On this count also, the petition is liable to be rejected. "
23. Mr. S.K. Kadam, learned counsel appearing for State election
authorities - respondents no. 2 to 4 submits that the whole
controversy has been rendered redundant in the face of situation
that except in writ petitions no. 2489 of 2016 and 2488 of 2016,
there is already declaration of election results having regard to rule
32 of the Maharashtra Co-operative Societies [Election to
Committee] Rules, 2014. He refers to that not only necessary
declaration has taken place, but even the notifications have been
issued accordingly. He further submits that elections have reached
to logical conclusion and as such election programme stands
terminated. In view of the same, he submits that the only remedy
available to the petitioners is election petition pursuant to rule 78 of
the Rules.
24. In writ petitions No. 2490 of 2016 and 2491 of 2016,
rejections of nomination had been on the ground of defaults
referred to under section 73CA (1) of the Act. However, there also
the situation is that declaration of result has already taken place.
25. Learned counsel for the parties, in such a situation, resile to
that they may explore possible resort to other remedies and
measures rather than having decision on merits in the present set
of writ petitions.
22 WP-2351.16
26. The conspectus, as such, leads to a situation wherein any
decision on merits is unlikely to assist the petitioners and a relief of
practical worth can be said to be available to them in the scenario.
In the circumstances, decision in writ petitions is refrained from
being given.
27. In the situation, writ petitions are not being entertained on
merits and stand rejected, leaving it open to the parties to other
remedial recourses as would be available. Rule is discharged.
28.
It is further made clear that observations in this order are
confined only for the purpose of rejection of present writ petitions
and would not have any binding efficacy and shall not have any
influence on decisions in remedial recourses as may be adopted by
the parties.
SUNIL P. DESHMUKH,
JUDGE
pnd
