Bombay High Court
Sow Saralabai Arjun Bajaj And Ors. vs The State Of Maharashtra And Ors. on 28 April, 1992
Equivalent citations: 1993(3)BOMCR706
JUDGMENT B.N. Deshmukh, J.
1. Rule returnable forthwith.
2. In this petition the election programme published by the respondent No. 2 for holding election of respondent No. 3 - Jalna Peoples' Co-operative Bank Limited is challenged by the petitioners on the ground that, there is no reservation made in favour of women as per amended provisions of section 73BBB of the Maharashtra Co-operative Socieities Act. According to the petitioners, therefore, the election programme is illegal and is in contravention of the provisions of section 73BBB of the Act.
3. At the time of the hearing of the petition, two applications were filed for adding respondents to the petition. We have granted these two civil applications for intervention only and heard the counsel appearing in these civil applications.
4. It is not disputed that, the provisions of Maharashtra Co-operative Societies Act are amended with effect from 31st of December, 1991 and section 73BBB is added to the provisions of the Co-operative Socieities Act.
5. Section 73BBB provides for reservation of seats of committees of societies for women members by elections or co-option, as the case may be, thereto.
6. We may also note that, for the purposes of elections to the Zilla Parishads and to the Municipal Councils in the State there is a special provision made for reserving seats to the extent of 1/3rd in favour of women. With that spirit, it seems that, the Maharashtra Co-operative Societies Act is also amended and a special provision is made for reservation of seats on committees of societies for women. Sub-section (2) of section 73BBB provides that, reservation in favour of women shall be in addition to the strength of the members of the committee of a society.
7. Sub section (1) of section 73BBB provides that, there shall be reserved seats for women on the committee of each society to represent the women members in the following manner :
(a) one seat on the committee consisting of not less than 9 committee members;
(b) two seats on the committee consisting of 10 or more, but not exceeding 19 committee members; and
(c) three seats on the committee consisting of 20 or more committee members.
It is further provided that, where the bye-laws of a society provide for reservation of seats for women on the committee thereof, the total number of seats to be so reserved shall not exceed the number of seats specified in sub-section (1), in which case there may or may not then be any addition to the strength of members of the committee.
8. Sub-section (4) provides that, where no woman member or, as the case may be, women members are elected to the reserved seats, the women members shall be co-opeted in the manner prescribed.
9. Sub-section (6) of the said section provides that, elections to the additional reserved seats as provided by this section shall be held as early as possible immediately after the date of commencement of the Maharashtra Co-operative Societies (Amendment) Act, 1991, but in no case later than six months from such date. On the failure of the society to hold such election the woman member or women members, as the case may be, shall be co-opeted or appointed in accordance with the provisions of sub-section (4).
10. Sub-section (7) of the said section provides that, notwithstanding anything contained in sub-section (6), no election to such additional reserved seats shall be held where the term of the committee of a society is to expire within six months from the date of the commencement of the Maharashtra Co-operative Socieities (Amendment) Act, 1991.
11. While sub-section (8) provides that the term of office of such women members co-opted or appointed, shall be co-terminus with the term of the committee as provided under the bye-laws of the society and at the time of every fresh election thereafter election shall be held to the additional reserved seats for women members in accordance with the provisions of this section.
12. These provisions of section 73BBB made it obligatory for reservation of seats in favour of women and any fresh elections to the committee of a society shall be held to the additional reserved seats for women members in accordance with the provisions of this section.
13. The provisions of sections 73BBB were brought into force with effect from 31st of December, 1991. The election programme for holding elections of the members on the committee of respondent No. 3 is published on 16th April, 1992 as fresh election is being held of the members on the committee after adding section 73BBB and giving effect to the said provisions from 31st of December, 1991.
14. In the election programme as published there is no provision made for reservation in favour of women as per the provisions of section 73BBB. Admittedly, as per the election programme itself there are 15 seats to be elected to the committee of respondent No. 3. As per sub-section (1) of section 73BBB, there should have been two seats reserved in favour of women in addition to the existing number of strength of the committee members. The publication of the election programme itself shows that, there is no provision for reservation for electing women members on the committee. If there would have been any such provision in the bye-laws then in the election programme such reservation would have been mentioned in favour of women. The learned Counsel for the respondents also did not point out to any provision in this regard in the bye-laws of the said society. In the absence of any reservation in favour of women in the bye-laws, as per sub-section (1) of section 73BBB, there should have been two seats reserved for woman, in addition to the existing strength of the committee of the society.
15. Counsel for all the respondents state that they have no objection for providing any reservation in favour of the women as per section 73BBB, but, according to them, the programme of the election shall not be forestalled for a long period. Shri Kakade, the learned Government Pleader, produced before us a letter given to him by the respondent No. 2 by which it is stated that the respondent No. 2 has no objection for giving directions to make reservation in favour of women as per the provisions of section 73BBB. But, according to him, the election programme shall not be forestalled and the election shall be allowed to continue as per the published programme.
16. We have, therefore, no doubt that as the election programme was published after the amendment of the Co-operative Societies Act by adding the provisions of section 73BBB, in the fresh election for electing members on the committee of respondent No. 3-Society, there should have been two seats reserved for women.
17. We gave our anxious consideration to the request of the Counsel for the respondents not to postpone the election; but as per the election programme, not only the voters' list is finalised, but the last date for filing nominations by the candidates has also come to an end on yesterday, i.e., on 27-4-1992. If the election programme as published is to be continued, even if provision is made for reservation of two seats in favour of women, such candidates will have no opportunity to file their nominations for the said election, as the last date for filing of nomination is already over. It is, therefore, not possible to allow the election to proceed as per the published programme, as the women candidates who would be desiring to file their nominations for the reserved seats will not be able to do so at all. We, therefore, feel that the fresh election programme will have to be published to enable women to file their nominations for the reserved seats by making a provision for the same. So also, it is all the more desirable that the election programme must be published in accordance with law for holding fresh election by providing for reservation of two seats in favour of women, in addition to the existing strength of the members of the committee, so that the entire community of voters would come to know that they are to elect two women on reserved seats meant for them.
18. We may refer to the decision of the Supreme Court in Babaji Kondaji Garad and others v. Nasik Merchants Co-operative Bank Ltd., Nasik and others, . In that case, while considering the provisions of reservation made in favour of scheduled castes, scheduled tribes and weaker sections, the Supreme Court has observed : (Para 10, P. 197) "...The use of the expression `shall' in section 73-B (of the Maharashtra Co-operative Societies Act) clearly mandates obligation to reserve."
It is further observed : (Para 12, P. 197) "...the language and the chronology of the methodology of filling in reserved seats employed in section 73-B 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."
19. What is stated by the Supreme Court in favour of reservation as provided in section 73-B squarely applies in the case of reservation provided for women under section 73BBB.
20. Shri Deshmukh, for the petitioners, contended that the District Deputy Registrar has no right to publish the election programme to hold the election of the committee of respondent No. 3, as the said society is neither specified society notified society. We will not entertain this argument at this stage, as the election programme was already published by the District Deputy Registrar. In the interest of fairness in the election, we feel that instead of directing the Managing Committee of the society to hold elections, it is better in the present case if the District Deputy Registrar holds the election. There is no illegality or infirmity involved in holding the election by an independent agency.
21. The election programme was published after the finalisation of voters' list. Even if we set aside the election programme on the ground that reservation for women is not provided for, there is no reason to set aside the final list of voters as published. The election programme to be published afresh shall be on the basis that the final voters' list is properly published.
22. We, therefore, set aside the election programme as published on 16th April, 1992 (Exhibit `C') and direct respondent No. 2 to publish the programme afresh. As the voters' list is already finalised, there is no necessity to publish the voters' list afresh for the fresh election programme. The fresh election programme shall commence from the stage after the publication of the voters' list.
23. As the election will be proceeded with by providing reservation of 2 seats in favour of women in addition to existing strength, the woman candidates will be elected to the reserved seats in the manner similar to that of filing in seats reserved in favour of the scheduled castes, scheduled tribes and weaker sections, until a specific provision is made in the bye-laws of the said society.
24. Rule made absolute accordingly. The shall be no order as to costs.