Bombay High Court
Mr. Prafulla Gopaldas Agrawal, And Anr vs State Of Maharashtra Through Secretary ... on 30 January, 2025
Author: M.S.Sonak
Bench: M.S.Sonak
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2025:BHC-AS:4523-DB
Darshan Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4548 OF 2018
Mr. Prafulla Gopaldas Agrawal & anr. ...Petitioners
Versus
State of Maharashtra through
Secretary, Ministry of
Co-operation Department, & ors. ...Respondents
ALONG WITH
CIVIL APPLICATION NO.909 OF 2018
AND
CIVIL APPLICATION NO.908 OF 2018
IN
WRIT PETITION NO.4548 OF 2018
__________________________________________________________
Mr P Ranjan, i/b Halai & Co, for the Petitioner
Dr Birendra B Saraf, Advocate General, with Ms Neha S Bhide,
GP, with Mr Jay Sanklecha 'B' Panel Counsel, Mr S
Kankal, AGP & Mr Y D Patil, AGP, for the Respondent-
State
Mr A M Ghare, (through VC), for the Respondent No.3
__________________________________________________________
CORAM : M.S.Sonak &
Jitendra Jain, JJ.
RESERVED ON : 28 January 2025
PRONOUNCED ON : 30 January 2025
JUDGMENT (Per MS Sonak J):
-
1. Heard Mr P. Ranjan i/b. Halai & Co. for the Petitioner,
Dr. Birendra B. Saraf, learned Advocate General a/w Ms Neha
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S. Bhide, GP, Mr Jay Sanklecha, 'B' Panel Counsel, Mr S. H.
Kankal, AGP and Mr Y. D. Patil, AGP for the State and Mr A.
M. Ghare for the third Respondent (through VC).
2. This Petition seeks the following reliefs:-
(a) Quash and set aside decision of the State
Government to hold elections of the
Respondent No.5 society recorded in order
dated 07/12/2016 (Annexure No.12).
(b) Consequently quash and set aside the
election programme dated 19/12/2016
published by the Respondent No.3 (Annexure
No.18).
(c) Hold and declare that Constitution (97 th)
Amendment Act (Annexure No.22) inserting
Part IX B containing Articles 243ZH to 243ZT
is ultra vires the Constitution of India.
(d) Quash and set aside, the provisions of
Section 30, 32 and 33 of the Maharashtra
Cooperative Societies Amendment Act, 2013
(Annexure No.20) which introduces Section
73 AAA being ultra vires of Constitution of
India.
(e) During the pendency of the instant
petition the elections to the Respondent No.5
be stayed.
(f) Any other order as this Hon'ble Court
deems fit and proper in the facts of the case be
passed.
3. By substantially adopting the reasons we recorded in
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our judgment and order dated 30 January 2025 disposing of
Writ Petition No.12987 of 2018, we dispose of this Petition.
4. The challenge to the Constitution (97th) Amendment Act
inserting Part IX B, which contains Articles 243ZH to 243ZT, is
substantially worked out, given the decision of the Hon'ble
Supreme Court in Union of India vs. Rajendra N. Shah and
another1.
5. This Petition proceeds on the premise that once the
insertion of Part IX B in the Constitution is declared as ultra
vires, at least in so far as it applies to Cooperative Societies
under a State Legislation, then the Maharashtra Cooperative
Societies (Amendment) Act, 2013 must be struck down as
ultra vires. This premise is flawed because the Hon'ble
Supreme Court, in Rajendra Shah (supra), has affirmed that
the State Legislatures would be competent to legislate on
Cooperative Societies within the State.
6. Sections 30, 32, and 33 of the Maharashtra Cooperative
Societies (Amendment) Act, 2013, inter alia, introduced
Section 73AAA and provided for some reservations on the
committees that govern Cooperative Societies. The
amendments also deleted the reservations for persons
belonging to Economically Weaker Sections or employees in
some cases. Section 73AAA restricts the number of committee
members or directors to 21. Later amendments permit this
number to go up to 25 in exceptional circumstances.
7. Fixing the maximum number of committee members or
directors, providing for reservations or deleting the
2021 SCC OnLine SC 474
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reservations already granted are essentially policy matters.
The Petitioners have failed to establish any constitutional right
to the reservations they now claim through the Petition.
8. Learned Advocate General correctly relied upon the
decisions of the Hon'ble Supreme Court in the case of State of
Punjab vs. Anshika Goyal2, Mukesh Kumar vs. State of
Uttarakhand and others3 and Ajit Singh (II) vs. State of
Punjab4 to submit that decisions of reservations are mainly
policy decisions. It is for the State Government, by legislation
or otherwise, to provide for reservations for different sections
of the societies. Learned Advocate General submitted that
there is no constitutional right or mandate to insist on the
reservations sought in this Petition on committees of
Cooperative Societies.
9. Accordingly, we dismiss this Petition for the above
reasons and the reasons set out by us in our judgment and
order disposing of Writ Petition No. 12987 of 2018.
10. The interim order we granted has been vacated. The
current committee members' terms expired on 18 September
2016. However, they continue to govern the affairs of the fifth
Respondent Society based on the interim order staying the
election programme.
11. Now that the stay is vacated, we direct the State
Cooperative Election Authority (Authority) to hold elections in
accordance with the law as expeditiously as possible. Such
(2022) 3 SCC 633
(2020) 3 SCC 1
(1999) 7 SCC 209
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elections must be held and concluded within six months from
today. This direction is consistent with the statement made by
the learned Advocate General in the case of Shantabai Magru
Bawane and another vs. State of Maharashtra and others, Writ
Petition No.4547 of 2018, recorded in our order dated 27
January 2025.
12. In the case of Baburao s/o Banduji Kubde Vs. Yavatmal
District Central Cooperative Bank Limited & Ors., in Special
Leave to Appeal (c) No. 8004 of 2019, the Hon'ble Supreme
Court made an order on 25 November 2019 directing the
holding of elections as expeditiously as possible, once the
term of elected members of the board of directors comes to an
end. The Hon'ble Supreme Court held that in a democracy,
elections must be held within the time prescribed by law. It is
only in exceptional circumstances that elections can be
delayed. All bodies elected by the democratic process must
not continue after their term is completed and the rule of law
requires that fresh elections be held. Hon'ble Supreme Court
expressed surprise that in the case before it, where the bank
itself had approached for directions to hold the elections
instead of allowing the bank's writ petition, interim relief was
granted, resulting in a restraint on the holding of elections.
Accordingly, the interim order was vacated, and directions
were issued for holding elections and completing the same
before 28 February 2020.
13. Mr P. Ranjan referred to the proviso to Section 73AAA
(3) of the MCS Act. Based on the same, he submitted that the
committee members may be allowed to continue until a newly
elected body takes charge. Following our order dated 27
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January 2025 in Writ Petition No.4547 of 2018, we allow the
earlier committee to continue for six months. Within this
period, the authority must ensure the elections are held and
concluded. If, for any reason, the elections are not held and
concluded within this period, the State Government is free to
appoint an Administrator to take over the affairs and
management of the Fifth Respondent Society. This is because
the elected members whose terms have already expired
cannot be allowed to continue either indefinitely or by
creating a situation whereby no elected body is available to
take charge of the affairs of the Cooperative Society.
14. Besides, during these six months, we restrain the
present committee members from making major policy
decisions or spending any amounts for purposes other than
routine operational expenses. The committee members must
be conscious that their terms have already expired. In that
sense, they are not continuing as per the wishes of their
voters. Therefore, there is no question of them taking any
major policy decisions or unduly expending bank finances for
purposes other than routine operational purposes.
15. The Divisional Joint Registrar, the 2nd respondent, must
ensure that no major policy decisions are made and maintain
control over this committee's spending of the bank's funds. If
the 2nd respondent finds that any undue expenditures are
being made, the Divisional Registrar must take steps to
prevent this. Liberty is also granted to the Divisional Joint
Registrar to apply to this Court, including directions for the
appointment of an administrator if the need arises.
16. The committee members, now allowed to continue for 6
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months, must fully cooperate with the authority so that the
elections can be held and concluded within 6 months. This
includes providing funds for elections and submitting the
provisional voter lists. All this exercise must be completed
within 15 days of the Authority starting the process,
demanding the election funds, and furnishing the provisional
voter lists. The Authority must also issue these directions as
soon as possible, in any event, within 15 days from today.
17. This Petition is disposed of in the above terms without
any cost order.
18. The Civil Applications do not survive and are disposed
of.
(Jitendra Jain, J) (M. S. Sonak, J)
Signed by: Darshan Patil
Date: 30/01/2025 17:57:25
