Bombay High Court
Nitin Bhanudas Autade vs The State Of Maharashtra And Others on 8 March, 2016
Author: Sunil P. Deshmukh
Bench: Sunil 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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
6 WP-2351.16
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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
7 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. 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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
9 WP-2351.16
-----
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").
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::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.::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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-::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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).
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::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:-
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::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 ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 ::: 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 ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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.
::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::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 ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 ::: 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.' '' ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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. '' ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 ::: 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 ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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.::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::
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 ::: Uploaded on - 07/04/2016 ::: Downloaded on - 31/07/2016 08:13:38 :::