Full Judgment Text
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PETITIONER:
BABAJI KONDAJI GARAD ETC.
Vs.
RESPONDENT:
THE NASIK MERCHANTS CO-OPERATIVE BANK LTD., NASIK & ORS.ETC.
DATE OF JUDGMENT31/10/1983
BENCH:
DESAI, D.A.
BENCH:
DESAI, D.A.
REDDY, O. CHINNAPPA (J)
VARADARAJAN, A. (J)
CITATION:
1984 AIR 192 1984 SCR (1) 767
1984 SCC (2) 50 1983 SCALE (2)696
CITATOR INFO :
RF 1986 SC1499 (16)
RF 1988 SC 784 (21)
ACT:
Maharashtra Cooperative Societies Act, 1960-Sec. 73B
interpretation of-Reservation of two seats for Scheduled
Casts/Scheduled Tribes and weaker section on committee of a
specified society mandatory-Reserved seats to be filled in
primarily by election-Failing election alone seats may be
filled by appointment or co-option. Election held pursuant
to election notification not mentioning reservation of
seats-Illegal.
Interpretation- ’The equity of the statute’-Method of
construction of a statute-Used in the past-Still in vogue.
Legislature uses appropriate language to manifest its
intention.
Administrative Law-Bye-law-Status of-Cannot be held to
be law or have the force of law. In case of inconsistency
between bye-law & statute-Statute prevails. Construction
placed on a statutory provision by executive branch-Not
relevant for interpreting the provision by court.
HEADNOTE:
On expiry of the term of the committee known as Board
of Directors of a specified society under the Maharashtra
Cooperative Societies Act, 1960 the Collector notified the
election programme without specifying that the two seats on
the committee would be reserved seats; one for the members
belonging to the Scheduled Castes or Scheduled Tribes and
one for the weaker section of the members of the society.
Pursuant to that election programme the poll was held and
the result was declared. The said election was challenged by
a member of the society belonging to Scheduled Tribe on the
ground that the whole of the election programme is vitiated
on account of its non compliance with the mandatory
statutory provision enacted in sec. 73B which prescribed
reservation of seats; one in favour of Scheduled Castes or
Scheduled Tribes and another in favour of weaker section
from the members of the society. The Additional Commissioner
who heard the election petition declared the election of the
elected members as void and ineffective. On a writ petition
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filed by some of the elected members the High Court held
that it was not imperative that the reserved seats must be
filled in only by election and the mandate of sec. 73B would
be adequately complied with if reserved seats are filled in
by co-option and there was no error in conducting the
election. In these appeals the appellants submitted that
sec. 73B proceeded to make a statutory reservation of two
seats and declared its preference in favour of filling in
the reserved seats by
768
election failing which alone the reserved seats were to be
filled in by appointment or co-option. The respondent
submitted that the filling of the reserved seats was a sine
qua non; the method of filling reserved seats was directory
and therefore any of the three modes could be adopted.
Allowing the appeals,
^
HELD: The election in question is ex facie illegal,
invalid and contrary to law. [781 F]
Section 73 of the Act requires the Collector to hold
election in accordance with the Act including sec. 73B. The
failure to hold election in accordance with the Act
including sec.73B would vitiate the whole election programme
from commencement till the end. It would all the more be so
because the failure to hold election according to the
provisions of the Act which denies an opportunity to the
persons who are eligible to get elected to the reserved
seats would certainly vitiate the whole election programme.
Therefore, the Collector must specify in the election
programme inter alia that there are reserved seats to be
filled in by election and the class in whose favour
reservation is made. This will be notice to the members
eligible for contesting election to reserved seats so that
they may fill in their nomination. In the instant case there
is not even a whisper in the election programme whether any
of the seats were reserved. The omission is glaring and
fatal. Therefore, it can be safely concluded that the
election is held in violation of sec. 73B. [781 D-F]
Any provision making for reservation must receive such
construction as would advance the purpose and intendment
underlying the provision making reservation and not thwart
it. In the past a method of construction was used to extend
a remedial statute called proceeding upon ’the equity of the
statute’. Now a days even though that method of construction
has fallen into disuse, it is still in vogue in somewhat
similar from in that if it is manifest that the principles
of justice require something to be done which is not
expressly provided for in an Act of Parliament, a court of
justice will take into consideration the spirit and meaning
of the Act apart from the words. [775 G-H; 776 B]
Hay v. Lord Provost of Perth, [1863] 3 Macq. H.L.
(S.C.) 535 at 544; Re Bethlem Hospital [1875] L.R. 19 Eq.
457 and Craies Statute Law, Seventh Edition P. 101-103
referred to.
No canon of construction can be said to be more firmly
established than this that the legislature uses appropriate
language to manifest its intention. In the instant case, the
use of the expression ’shall’ in sec. 73B clearly mandates
obligation to reserve. The section itself clearly manifests
legislative intention when it says that ’if no such persons
are elected or appointed,’ the reserved seats may be filled
in by co-option. The language and the chronology of the
methodology of filling in reserved seats employed in sec.
73B provide a clue to its correct construction and there
should be no doubt that opportunity must be provided for
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filling in seats by election. It is the failure of the
election machinery to fill in the seats by election which
would enable the concerned authority to fill in seats by
appointment or co-option. [776 G-H; 777 A-B]
769
The bye-laws of a cooperative 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. If there is any conflict
between a statute and the subordinate legislation, the
statute prevails over subordinate legislation and the bye-
law if not in conformity with the statute in order to give
effect to the statutory provision the rule or bye-law has to
be ignored. The statutory provision has precedence and must
be complied with. [780 B-C]
In the instant case sec. 73B provides a legislative
mandate. Rule 61 has a status of subsidiary legislation or
delegated legislation. [779 H]
Co-operative Central Bank Ltd. and Ors. v. Additional
Industrial Tribunal, Andhra Pradesh and Ors. [1970] 1 S.C.R.
205 referred to.
A view of law or a legal provision expressed by a
Government Officer cannot afford reliable basis or even
guidance in the matter of construction of a legislative
measure. It is the function of the Court to construe
legislative measures and in reaching the correct meaning of
a statutory provision, opinion of executive branch is hardly
relevant. Nor can the Court abdicate in favour of such
opinion. In the instant case the opinion of the Deputy
Registrar as expressed in his letter and circular has no
relevance. [780 F-G; D]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 11991 of
1983.
From the Judgment and Order dated the 27th April, 1983
of the High Court of Bombay in Writ Petition No.392 of 1982.
AND
Civil Appeal No.1810/81.
From the Judgment and Order dated the 8th July, 1981 of
the High Court of Bombay in Writ Petition No.1484 of 1981.
V.M. Tarkunde, Mrs. M. Karanjawala and R. Karanjawala,
for the appellant in C.A.No. 11991/83.
M.N. Phadke, C.K. Ratnaparkhi and A.N. Sawant for the
respondents in C.A.No. 11991/83.
P.R. Mridul, P.N. Parekh and P. Mishra for the
respondent No. 1
R.P. Bhatt, K. Rajendra Choudhary and K.S. Choudhary,
for the appellant in C.A. No.1810/81.
770
Dr. N.M. Ghatate, S.V. Deshpande, V.B. Joshi and M.N.
Shroff for the respondents in C.A. No. 1810/81.
The Judgment of the Court was delivered by
DESAI, J. Construction of Sec. 73B of the Maharashtra
Cooperative Societies Act, 1960 (’Act’ for short) figures in
these two appeals arising from the two decisions rendered by
the Bombay High Court, covering the same point and reaching
the same conclusion, but the latter one does not take note
of the earlier decision. Re: S.L.P. (Civil) No. 773283: The
Nasik Merchants Co-operative Bank Ltd., the first
respondent, is a co-operative Bank deemed to be registered
under the Act and is governed by the Act. It was registered
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on June 11, 1959. It is a specified society within the
meaning of the expression in Sec. 73G(1)(vii) of the Act.
Accordingly the election of the members of the Committee and
the election of the office-bearers by the Committee of the
first respondent would be subject to the provisions of
Chapter XI-A and has to be conducted in the manner
prescribed in the Chapter. The Committee in which management
of the first respondent vests, is designated as Board of
Directors. The term of the members of the Board of Directors
is five years. The election to the Board of Directors for
the period 1981-82 to 1985-86 became due. As required by
Sec. 144-C, the Collector having jurisdiction in the matter
notified the programme of election on October 29, 1981. At
the relevant time, the strength of the Board of Directors
was 15 in number. 14 Directors were to be elected by members
and one was to be nominated by the Central Co-operative
Bank. It is not disputed but in fact conceded that the
election programme notified by the Collector did not specify
that the two seats on the Board of Directors of the first
respondent would be reserved seats; one for the members
belonging to the Scheduled Castes or Scheduled Tribes and
one for the weaker section of the members who have been
granted loans from the society of an amount not exceeding
Rs. 200 during the year immediately preceding as required by
Sec. 73B of the Act. Poll was held on December 14, 1981 and
the counting of votes took place on December 14, 1981 and
the result was declared on December 17, 1981. Respondents 3
to 16 were declared elected. Thereupon the present
petitioner, a member of the first respondent-Bank and
belonging to the Joshi community which is recognised as a
Scheduled Tribe moved an election petition under Sec. 144
before the Additional Commissioner, Nasik, calling in
question the election of respondents 3 to 16 to the Board of
771
Directors of the firs respondent-Bank inter alia on the
ground that the whole of the election programme is vitiated
on account of its non-compliance with the mandatory
statutory provision enacted in Sec. 73B which prescribes
reservation of seats; one in favour of Scheduled Castes or
Scheduled Tribes and another in favour of weaker section
from the members who had borrowed loans not exceeding Rs.
200 in the year preceding the year of election (’reservation
for weaker section’ for short). There were other grounds on
which the election of respondents 3 to 16 was called in
question but they are no more relevant and need not clutter
the record here. The Additional Commissioner as per his
judgment and order dated February 8, 1982 held that despite
the failure of the first respondent-Bank to amend bye-law 41
(correct bye-law appears to be 40) even after repeated
reminders by the District Deputy Registrar, the mandate of
Sec. 73B will have precedence overt he unamended bye-law 40
and as the election process was set in motion in
contravention of the mandatory provision contained in Sec.
73B and the relevant rules, the result of the election has
been materially affected and accordingly declared the
election of respondents Nos. 3 to 16 as void and ineffective
and directed the Collector, Nasik to hold the election de
novo.
Respondents Nos. 3 to 7 and 9, 10 and 12 and 14 to 16
filed Writ Petition No. 392 of 1982 in the High Court of
Judicature at Bombay under Art. 227 of the Constitution for
a writ of certiorari. A Division Bench of the Bombay High
Court granted the writ and made the rule absolute holding
that it is not imperative that the reserved seats must be
filled in only by election and the mandate of Sec. 73B would
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be adequately complied with if reserved seats are filled in
by co-option and therefore, there is no error in conducting
the election. Accordingly, the order of the Additional
Collector was quashed and set aside and the election
petition was dismissed.
When the petition for special leave to appeal came up
before this Court, a direction was given that the matter
will be disposed of at the stage of granting special leave
as if it is an appeal. Hence this appeal by special leave.
Re. C.A. No. 1810/81: The Parbhani District Central Co-
operative bank Ltd., the second respondent is a co-operative
bank deemed to be registered under the Act. It is a
specified society within the meaning of the expression in
Sec. 73G. The term of members of the Board of Directors
expired. Accordingly, the Collector of Parbhani, the first
respondent notified programme of election commencing from
March 30, 1981 and
772
ending with the counting of votes and declaration of result
on April 24, 1981. The election was held and the result was
announced and respondents No. 3 to 12 were declared elected.
Thereafter the meeting of the elected members of the Board
of Directors is to be convened to elect the office bearers.
At that stage, the two appellants filed Writ Petition No.
1484 of 1981 in the Bombay High Court questioning the
validity of the election of the respondents 3 to 12 inter
alia on the ground that the election was held in violation
of Sec. 73B of the Act.
A Division Bench of the Bombay High Court held that
there was some confusion between the procedure for election
prescribed in the rules and the bye-laws and the one
prescribed in Sec. 73B and therefore, the Collector did not
take steps to hold election to the reserved seats. The Court
further held that the first petitioner did not take any
objection until the whole election process was completed and
at a later stage approached the Court to ’throttle down’ the
election of the office-bearers and that this might indicate
a waiver of the right on the part of the petitioner and also
it amounts to acquiescence and therefore, no interference is
called for at the instance of the petitioner. The Court also
observed that co-option being an alternative to election to
the reserved seats, the mandate of Sec. 73B would be
satisfied if the Board of Directors co-opts two members to
provide representation to the two reserved seats.
Approaching the matter from this angle, the writ petition
was dismissed. Hence this appeal by special leave.
The out-come of these two appeals depends upon the
construction to be put on Sec. 73B which must subserve the
underlying intendment of that provision. Sec. 73B reads as
under:
"On the committee of such society or class of
societies as the State Government may, by general or
special order, direct, two seats shall be reserved, one
for the members who belong to the Scheduled Castes or
Scheduled tribes and one for the weaker section of the
members who have been granted loans from the society of
an amount not exceeding Rs. 200 during the year
immediately preceding. If no such persons are elected
or appointed, the committee shall co-opt the required
number of members on the committee from amongst the
persons entitled to such representation."
773
Section 73 provides that the management of every
society shall vest in a committee, constituted in accordance
with the Act, the rules and the bye-laws. Sec. 73B mandates
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that two seats shall be reserved on the committee of such
society or class of societies as the State Government may,
by general or special order, direct, (’Specified society’
for short) one for the members who belong to the Scheduled
Castes or Scheduled Tribes and one for the weaker section of
the members who have been granted loans from the society of
an amount not exceeding Rs. 200 during the year immediately
preceding. Sec. 73B further provides that if no such persons
are elected or appointed, the committee shall co-opt the
required number of members on the committee from amongst the
persons entitled to such representation.
We may now note the rival contentions. Appellants
assert that the reservation in favour of the Scheduled
Castes and Scheduled Tribes and weaker section of the
members on the committee of the society manifests a
statutory attempt giving effect to the provisions of the
Constitution especially the one contained in Arts 43 and 46
and has to be given effect as if carrying out the
constitutional mandate enshrined in Arts. 15 and 16 of the
Constitution. Proceeding along this line, it was submitted
that a democratic polity swears by setting up democratic
institutions election, neither by appointment nor co-option.
It was submitted that the Legislature has clearly indicated
its preference in favour of election failing which alone the
reserved seats may be filled in by appointment or co-option.
They have called in aid the chronology of methodology set
out in Sec. 73B. wherein it is stated that ’if no such
persons are elected or appointed,’ the committee shall co-
opt the required number of members on the committee from
amongst the persons entitled to such representation.’
Appellants assert that Sec. 73B proceeded to make a
statutory reservation of two seats and declared its
preference in favour of filling in the reserved seats by
election and that is indicated by the expression; ’if no
such persons are elected or appointed,’ the committee then
in order not to defeat legislative intention of giving
representation to the class in whose favour reservation is
made, shall co-opt the required number of members on the
committee. The appellants say that co-option can be availed
of as the last resort and cannot be used to supplant
election to defeat the legislative mandate according
priority to election or appointment. They say that co-option
can only be resorted to, to effectuate the purpose
underlying Sec. 73B if and only if an attempt having been
made at first providing an
774
opportunity to fill in reserved seats by election, failing
which appointment and thereafter co-option, which cannot be
equated with election or appointment so that anyone mode may
be adopted for filling in the reserved seats at the whim or
caprice or sweet will either of the statutory authority or
the committee of members.
The respondents excluding the statutory authority on
the other hand contend that the object underlying Sec. 73B
is to provide for giving an opportunity to persons belonging
to the class in whose favour reservation is made such as
members of the Scheduled Casts/Scheduled Tribes or the
weaker section of the members of the Society to be on the
committee. The primary importance is of filling in reserved
seats and not the methodology because the legislature was
aware that a class of persons in whose favour reservation is
made may not be available for election and therefore,
provision for appointment as also for co-option has been
simultaneously made in Sec. 73B. The respondents assert that
the filling in of the reserved seats is a sine qua non to
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carry out the mandate of Sec. 73B and not the mode or method
by which the reserved seats are filled.
The rival contentions clearly bring to the fore the
question of construction of Sec. 73B.
The Act was enacted in 1960 and it repealed the Bombay
Co operative Societies Act, 1925. Sec. 73 provides for the
vesting of the management of every society in a committee to
be constituted in accordance with the Act, the rules and the
bye-laws. At the commencement of the Act, there was no
provision for reservation of seats in favour of the members
of the Scheduled Castes and the Scheduled Tribes and the
weaker section of the members. Sec. 73B making reservation
obligatory was introduced in the Act by Amending Act 27 of
1969. Why was this specific amendment made ? The working of
the Act must have disclosed a sorry state of affairs that
even though the cooperative movement was expanding by leaps
and bounds, the members of Scheduled Castes and Schedule
Tribes or the weaker section of the members of the society
were not represented in the committee and had no opportunity
to participate in the decision making process, laying down
broad policies and management of the society. Art. 43 of the
Constitution set the goal that the State shall endeavour to
promote cottage industries on an individual or co-operative
basis in rural areas. In our onward march of economic
775
independence, India was destined to be a co operative
commonwealth. Since independence, co-operative movement
proliferated in all directions, its activities were
diversified, more especially in the rural areas; Every
activity of a person devoted to agriculture in the rural
area is considerably influenced by the co-operative
movement, such as seed distribution, credit, disposal of
agricultural produce etc. The members of the Scheduled
Castes and Scheduled Tribes predominantly in rural areas did
not remain unaffected by the gigantic stride that the co-
operative movement took. They were directly and
substantially affected by it. In order to avoid that those
who are affected by the movement in their vital day to day
existence enjoy a second class status by being denied the
opportunity to be represented in the management council, and
decision making bodies, a provision like Sec. 73B was
introduced to ensure representation of such persons who in
the absence of reservation may find it difficult to be
elected to the committee in which the entire power of
management vests. Absence of representation coupled with
subjection to the dictates of the society would be
antithesis of democratic process reducing such persons to
serfdom. A co-operative society is to be governed by a
committee elected by democratic process. This democratic
process must permeate in filling in reserved seats otherwise
the committee would not enjoy a representative character.
One can draw light from the provisions contained in Part XVI
of the Constitution and especially Arts. 330 and 332 which
provide for reservation of seats in the House of People and
in the Legislative Assembly of every State for the Scheduled
Castes and the Scheduled Tribes. The felt necessities of the
time and the historical perspective of class domination led
to the constitutional guarantee of reservation so that India
can truly be a Sovereign Socialist Secular Democratic
Republic. A republic is made up of men and institutions.
That is why democratic institutions have to be set up by
providing for election and to make the democratic
institutions truly representative, reservation of seats for
those who on account, of their backwardness, exploitation
and unjust treatment both social and economic cannot obtain
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representation because of the class domination. This is the
genesis of reservation. Therefore, any provision making for
reservation must receive such construction as would advance
the purpose and intendment underlying the provision making
reservation and not thwart it. "In the past a method of
construction was used to extend a remedial statute called
proceeding upon the equity of the statute. In Hay v. Lord
Provost of Perth Lord Westbury observed that the mode of
776
construction known as the equity of the statute’ was ’very
common with regard to our earlier statutes, and very
consistent with the principle and manner according to which
Acts of Parliament were at that time framed.’ Undoubtedly,
now-a-days this mode of construction has fallen into disuse:
Even though the expression ’the equity of the statute’ has
fallen into disuse, it is still in vogue in somewhat similar
form in that if it is manifest that the principles of
justice require something to be done which is not expressly
provided for in an Act of Parliament, a court of justice
will take into consideration the spirit and meaning of the
Act apart from the words. In this context, one can recall
the words of Jessel M.R. in Re Bethlem Hospital, that ’the
equity of the statute’ may as well mean, such a thing as
construing an Act according to its intent, though not
according to its words. Alternatively, one can bring in
Hydon’s test more often noticed by this Court that in order
to arrive at true intendment of a statute, the Court should
pose to itself the questions; (1) what was the situation
prior to the provision under construction, (2) what mischief
or defect was noticed before introducing the provision, (3)
whether it was remedial and (4) the reason for the remedy.
Applying this test, the same result would follow inasmuch as
looking to the position and the plight of Scheduled Castes
and Scheduled Tribes and the weaker section of the members
of a society, though they would be subject to the dictate of
the society they had no voice in the managerial councils and
that to raise the stature and status of such persons so as
to bring them on the footing of equality with other segments
of the society, reservation was provided in the absence of
which those in whose favour reservation was made could not
get elected to the decision making bodies. While
ascertaining the true canon of construction applicable to
Sec. 73B, these aspects must stare into our face.
Before going in search of any external aids of
construction, let us look at the language employed by the
Legislature because no canon of construction can be said to
be more firmly established than this that the Legislature
uses appropriate language to manifest its intention. No
controversy was raised with regard to the power of
Legislature to prescribe reservation of seats in the
committee in which the management of the society vests. The
use of the expression ’shall’ in Sec. 73B clearly mandates
obligation to reserve.
777
The next question is how the reserved seats are to be
filled in ? The section itself clearly manifests legislative
intention when it says that ’if no such persons are elected
or appointed,’ the reserved seats may be filled in by co-
option. Therefore, the pride of place is accorded to
election of persons eligible to fill in reserved seats. Let
there be no mistake that there is no reserved constituency
which may divide the society or the electorate. The
constituency is the general constituency. Only the seats are
reserved. This would imply that the general body of members
will elect persons eligible to fill in reserved seats.
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When statute requires a certain thing to be done in a
certain manner, it can be done in that manner alone unless a
contrary indication is to be found in the statute. If the
Legislature uses expression ’if no such persons are elected’
it indubitably suggests that primarily the reserved seats
are to be filled in by election. Failing the election, one
can resort to appointment or co-option. The chronology of
the methodology by which seats are to be filled in as set
out in Sec. 73B clearly manifests the legislative intention.
The first and the foremost pride of place is accorded to
election. It ought to be so because a representative
institution ordinarily must be democratically elected. The
section therefore, speaks ’if no such persons are elected’
which would mean the authorities charged with a duty to hold
election must proceed to arrange for holding the election.
If election is held giving out information that there are
reserved seats and no candidate is forthcoming to contest
for the reserved seats, the Legislature in its wisdom
provided that the seats shall not remain vacant but can be
filled in by two subsidiary methods such as appointment or
co-option which cannot be put on par or equated with
election which is a universally recognised method by which
representative institutions are set up. Therefore, the
language and the chronology of the methodology of filling in
reserved seats employed in Sec. 73B provide a clue to its
correct construction and there should be no doubt that
opportunity must be provided for filling in seats by
election. It is the failure of the election machinery to
fill in the seats which would enable the concerned authority
to fill in the seats by appointment or co-option. The
condition precedent to filling in reserved seats by
appointment or co-option is holding of the election and
failure to elect such persons would permit resort to other
methods of filling in the reserved seats.
It was submitted that the object underlying Sec. 73B
can as well be fulfilled by co-opting two persons eligible
to fill in reserved seats.
778
The more vociferous submission was that such construction
should be put on a statutory provision which accords with
the main thrust of the section and not with peripheral
requirements which would appear to be directory. It was
urged that the fundamental requirement of Sec. 73B is to
provide representation to specified classes therein
mentioned and that must be held to be mandatory and not the
method by which the representation is ensured. Further it
was said that there is illuminating inter evidence in Sec.
73B itself which shows that the method of filling in seats
is directory and therefore three alternative modes by which
reserved seats could be filled in were provided in the
provision itself. Proceeding along this line, it was said
that co-option can equally ensure representation to the
qualified persons to fill in the reserved seats, and that
therefore, the Court should not upset the entire election
process on this account. If this approach is ever accepted,
it would strike a death-knell of the democratic principle of
giving the constituency the right to elect its
representatives and it would be usurped by a coterie of
certain elected persons. From enjoying a direct
representation, the constituency would move backwards and
the process of regress would be that instead of direct
election by the constituency which is the statutory right
granted by Sec. 73B, the right to select would be usurped by
the Board of Directors who would decide who should be co-
opted to fill in the reserved seats. Such a retrograde
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movement is undemocratic. The struggle to get direct
representation cannot be thwarted in this manner. This
becomes manifest from the fact that the power to co-opt the
members to fill in reserved seats is conferred on the
members of the committee i.e. on the Board of Directors. To
tersely put the issue in focus, the method of co-option
denudes the power of the constituency to elect members and
is usurped by a small body like the Board of Directors. The
outcome is not difficult to gauge. The committee will co-opt
members who would be their puppets, totally ignoring whom
the constituency i.e. the general body of members would have
elected. If it is the effect of co-option, it could never be
equated with election much less accorded precedence over
election by the general body of the members that is the
constituency. Therefore the submission that method of
filling in reserved seats is directory and therefore any one
of the three modes can be adopted to comply with the
mandatory part of Sec. 73B viz. filling in reserved seats,
does not commend to us.
Mr. Phadke, learned counsel who appeared for the
respondents in one of the appeals urged that the emphasis is
on filling in reserved
779
seats and not the mode or method by which the seats are
filled in. In this connection, he drew our attention to the
unamended bye-law No. 40 of the bye-laws framed by Nasik
Merchants Co-operative Bank Ltd., the first respondent in
the first matter. After referring to the unamended bye-laws,
it was urged that there was no provision for electing
members to the reserved seats. He further urged that Sec. 72
requires that the election to the committee has to be held
according to the Act, the rules and the bye-laws. Reference
was also made to the procedure for counting for votes set
out in rule 61 of the Maharashtra Specified Co-operative
Societies Election to Committees Rules, 1971 (’Rules’ for
short), which provide that the Returning Officer shall after
the counting of votes declare the candidate to whom the
highest number of valid votes has been given, as having been
elected. It was pointed out that bye-law No. 40 was amended
as late as February 13, 1983, which was much later than the
date of the impugned election. The amended bye-law did make
provision for election to reserved seats. The High Court has
also noticed amendment of Rule 61 by Maharashtra Specified
Co-operative Societies Elections to Committee (Amendment)
Rules, 1979. He further drew our attention to the circular
dated Ist February, 1979, issued by the District Deputy
Registrar of Co-operative Societies at Nasik in which he
pointed out that the committee should co-opt required number
of members on the committee from amongst the persons
entitled to representation on the reserved seats. The
specified societies were also requested to amend the bye-
laws as early as possible. He also drew our attention to a
letter dated June 4, 1979 addressed to the Nasik Merchant
Co-operative Society Bank Ltd, by the District Deputy
Registrar, Nasik pointing out therein that if the bye-law is
not amended the reserved seats should be filled in by co-
option and that the compliance should be reported before
March 31, 1979. He again requested the Bank to amend the
bye-laws to bring them in conformity with the requirements
of Sec. 73B. Relying on the unamended bye-law, rule 61 and
the aforementioned two documents, it was submitted that the
Government itself did not consider election to be the only
mode or method of filling in the reserved seats and
persistently requested the Bank to co-opt necessary number
of members to fill in the reserved seats, and therefore, it
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is not proper to invalidate the whole process of election.
We remain unconvinced.
Sec. 73B provides a legislative mandate. Rule 61 has a
status of subsidiary legislation or delegated legislation.
Bye-law of a co-
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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. and others v. Additional Industrial Tribunal, Andhra
Pradesh and Others 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 if not in conformity with the
statute in order to give effect to the statutory provision
the rule or 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 lake 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 Section 73B and
the bye-laws because even the Government has construed
Section 73B in such manner that even though the bye-
laws are not amended and reserved seats remain unfilled
by election the same can be filled 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 matter of construction of a
legislative measure. It is the function of the Court to
construe legislative measures and in reaching the correct
meaning of a statutory provision, opinion of executive
branch is hardly relevant. Nor can the Court abdicate in
favour of such opinion.
The provision contained in Chapter XI-A applies to
election to the committees of specified societies
categorised in Sec. 73B. Sec. 144-C requires the Collector
to draw an election programme and arrange for conducting the
election or under his control by the Returning Officer
according to the programme. Now the election
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programme has to be published. The programme therefore, must
in order to comply with legal formality show whether any of
the seats to be filled in are reserved and specify the class
in whose favour reservation has been made, so as to give
notice to persons eligible for contesting election to
reserved seats. This becomes manifestly clear from the form
prescribed for filling in the nomination paper being Form
No. 2 appended to the rules. In the case of reserved seats a
further declaration has to be made in the nomination form
that the candidate belongs to Scheduled Castes or Scheduled
Tribes or Vimukta Jati or the weaker section candidate. And
this declaration has to be signed by the candidate himself.
Now therefore, the Collector, a statutory authority charged
with a duty to hold election according to the Act, must
specify in the election programme inter alia that there are
reserved seats to be filled in by election and the class in
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whose favour reservation is made. This will be notice to the
members eligible for contesting election to reserved seats
so that they may fill in their nomination. There is not even
a whisper in the election programme whether any of the seats
were reserved. The omission is glaring and fatal. As pointed
out earlier, election has to be held to form the committee.
Sec. 73 requires the Collector to hold election in
accordance with the Act including Sec. 73B. The failure to
hold election in accordance with the Act including Sec. 73B
would vitiate the whole election programme from commencement
till the end. It would all the more be so because the
failure to hold election according to the provisions of the
Act which denies an opportunity to the persons who are
eligible to get elected to the reserved seats would
certainly vitiate the whole election programme. One can
safely conclude that the election is held in violation of
Sec. 73B. Therefore, in our opinion, the High Court was in
error in upholding the election, which is ex facie illegal,
invalid and contrary to law.
Accordingly both these appeals succeed Civil Appeal
arising from S.L.P. No. 7732/83 is allowed and the decision
of the High Court is quashed and set aside and the one
rendered by the Additional Commissioner is restored.
Civil Appeal No. 1810/81 is allowed and the judgment
and order of the High Court are set aside. A writ be issued
quashing and setting aside the election of respondents 3 to
12 to the Board of Directors of the Parbhani District Co-
operative Bank Ltd.
782
The concerned statutory authority in both the cases
should proceed to hold the election afresh as early as
possible and should complete the process within a period of
3 months from today. In the meantime, the status quo as on
today should continue. There will be no orders as to costs
of hearing in this Court.
H.S.K. Appeals allowed.
783