Bombay High Court
Utrane Vividh Karyakari Seva Sahakari ... vs Laxman Dalpat Patil And Ors. on 19 October, 1989
Equivalent citations: 1990(1)BOMCR217, 1989MHLJ1125
Author: Sujata Manohar
Bench: Sujata Manohar
JUDGMENT Sujata Manohar, J.
1. The 1st petitioner Society is an agricultural co-operative credits Society, registered under the Maharashtra Co-operative Societies Act. Elections to the Managing Committee of the 1st petitioner Society were held on 27-9-1987. The Elections were for the years 1987-1990. Petitioners No. 2 to 7 were elected to the managing Committee of the 1st petitioner Society as a result of this election. Respondents Nos. 1 to 3 who are members of the Society, out of whom respondent No. 3 had contested this election and lost, challenged the election by filling a dispute under section 91 of the Maharashtra Co-operative Societies Act. The Co-operative Court, Nasik, by its judgment dated 4-4-1989 declared the election as null and void and ordered fresh election under the supervision and control of an officer of the Co-operative Department. The petitioners preferred an appeal from this order before the Maharashtra State Co-operative Appellate Court at Bombay being Appeal No. 99 of 1989. This appeal has been dismissed by the Co-operative Appellate Court by its order dated 21st June, 1989, Hence the present petition.
2. At the impugned election the 1st petitioners had prepared two voters list. One for non borrower members and one for borrower members. At the relevant time there were about 400 borrower members and 94 non-borrower members. The non borrower members were asked to vote only for one seat which was for non-borrowers. While the borrower members were allowed to vote for the remaining 8 seats on the Managing Committee. The total seats were 9 out of which one was for non-borrower members, 6 for borrower members, one for weaker sections amongst the borrower members and one for a scheduled caste candidate from amongst borrower members.
3. The petitioner Society relies in this connection on its bye law 38A which provides that on the Managing Committee there will be only one representative of non-borrower members and he shall be elected from amongst the non-borrower members, provided that in the event of such a member being a designated officer of the Society, he will be considered ineligible for such election. This bye-law, in substance, re-produces the provisions of section 73-C(3) of the Maharashtra Co-operative Societies Act, 1960. Section 73-C(3) provides as follows :
"73-C(3). In the case of an Agricultural Credit Society which gives loans to individuals for the raising of crops, there shall not be more than one representative on the committee of such society, of members who have not taken any loans from the society and that representative shall be elected or appointed only from amongst members, who have not taken loans. Such representative shall not be eligible for being elected or appointed as a designated officer."
This section has interpreted by a Division Bench of this Court in the case of D.P. Patil & another v. Chikali Vividh Karyakari Socy Ltd. & others, reported in 1984 C.T.J. 147. In the case before the Division Bench the Agricultural Credit Co-operative Society concerned had prepared separate voters lists for borrower members and non-borrower members. The member were required to exercise their votes through separate ballot papers for a candidate from amongst non-members and for the remaining candidates. The returning officer had also directed non-borrowing members to exercise only one vote for the candidate from their category. Non-borrowing members were prevented from voting for other members. The Division Bench held that the bye-laws of the Society did not provide for any separate constituencies for election of the members of the Managing Committee. If held that section 73-C only contemplates a restriction on the representatives of certain categories of members on the Managing Committee. The provision for election of a representative from amongst non-borrowing members under section 73-C(3) does not mean that election of a representative of non-borrowers should be by these non borrower members alone. It held that in the absence of any provision for election of such a representative by non-borrowing members alone, the right of borrowing members to exercise their vote in this election cannot be denied. Section 73-C(3) does not contemplate separate constituencies of borrowing and non-borrowing members. It merely ensures a restriction on the number of representatives of non-borrower members. Even the possibility of no such representative being elected cannot be ruled out. In other words, the Division Bench held that by virtue of the provision of section 73-C(3) there is no restriction on the right of borrowing members to vote for the candidates of all categories; nor is there a restriction on the right of non-borrowing members to vote for the candidates of all categories.
4. The 1st petitioner Society however, seeks to rely upon its Election Rules in support of its practice. Under Election Rule 5 which is framed under the petitioner society's bye-laws, there is a provision for a separate voters' list of non-borrowing members and a separate voters' list for others. This Election Rules does not in any manner restrict the right to vote. Election Rule 22 provides that voting will take place with the help of ballot papers. Each member shall be entitled to give only one vote for each of the candidate to be elected by him.
5. It is submitted by Mr. Joshi, learned Advocate for the petitioners, that under Election Rule 22, there is a reference to separate constituencies for each category of votes. This contention cannot be accepted. Rule 22 merely provides that only one vote can be given to each of the candidates to be elected by a member. It does not mean that the right of a member to vote is confined only to candidates belonging to the same category as himself. Such a meaning cannot be read either expressly or by necessary implication in Election Rule 22. The ratio, therefore, of the judgment of the Division Bench in the case of D.P. Patil v. Chikali Vividh Karyakari Society Ltd. and others directly applies to the present case.
6. Both the courts were right in holding that the elections which were held by the 1st petitioner society were in contravention of the provisions of the Society's bye-laws, election rules and the provisions of the Maharashtra Co-operative Societies Act, 1960.
7. In the present case there is also a violation of section 152-A(2) of the Maharashtra Co-operative Societies Act, 1960. Under this section, notwithstanding anything contained in this Act, rules, or bye-laws made therein, the period between the date of scrutiny of nomination papers and the last date for the withdrawal of candidature shall not be less than 15 days. This is to provide for appeals for wrongful rejection of nomination papers as set out in the earlier part of section 152-A.
8. In the present case the date for scrutiny of nomination papers was fixed as 5th September, 1987. The last date for withdrawal of nomination was 8th September, 1987. There was therefore a clear contravention of the provisions of section 152-A(2). In the present case, however, in view of the challenge to the rejection of nomination papers which was upheld, ultimately the elections were postponed from 18th September to 27th September, 1987. Nevertheless there was no extension of date for withdrawal of the nomination papers. It is urged by Mr. Joshi that the elections should not be set aside merely because of the infringement of section 152-A(2). In the present case, however, there is a more substantial infringement referred to earlier, which necessitates setting aside of the entire election because the basic method of voting has been incorrect.
9. The respondents had also challenged the election of petitioner No. 4 who is the original petitioner No. 5 on the ground that he was disqualified from contesting the election because he was a surety for a borrower who had defaulted in repayment of his loan.
10. Rule 58(1)(a) of the Maharashtra Co-operative Societies Rules, 1961 prior to its amendment on 16-10-1987, was as follows :
"58(1) No person shall be eligible for appointment or election as a member of the committee of a society, if--(a) he is in default to any society in respect of any dues from him, either as a borrower or as a surety for such period as is specified in this behalf in the bye-laws of the concerned society, or for a period exceeding three months, whichever is less,........."
Petitioner No. 4 falls within this disqualification because both at the time of the scrutiny of the nomination papers as also at the time of election the unamended rule was in force. The said petitioner was a surety for a defaulting member. Hence he was disqualified. The Rule has been amended on 16th October, 1987, as a result of which a surety for a defaulting borrower is now no longer disqualified. But the benefit of this amendment was not available to petitioner No. 4 at the material time. It was on account of this unamended rule 58 that both the lowers courts have considered petitioner No. 4 as disqualifies from contesting the election in question.
11. In the premises I do not see any reason to differ from the view taken by both the lower courts.
The petition is dismissed and the rule is discharged with costs.