Madhya Pradesh High Court
Harikant Joshi vs Assistant Registrar And Returning ... on 22 February, 1991
Equivalent citations: 1992(0)MPLJ789
ORDER V.S. Kokje, J.
1. This is a petition by share-holder of the Ujjain Paraspar Sahakari Bank Maryadit, Ujjain (for short 'the Bank'), a Co-operative Society duly registered under the M. P. Co-operative Societies Act, 1961 (for short 'the Act'). On 2-2-1991, programme of election to the committee of the Bank was published by respondent No. 2, the General Manager of the Bank. According to this programme the following posts of members were offered to be filled in by election : -
a) from general category 11 b) from female 1 c) from Scheduled Caste 1 d) from Scheduled Tribe 1 Total 14The reason for the aforesaid break-up of elective posts was stated to be the amended provisions of Section 48(8) of the Act which was said to prescribe the number of elected and co-opted members of the committee to be 15. The contention of the petitioner is that bye-law 28(1) of the Bye-laws of the Bank provides that not more than 10 Directors will be elected from amongst the share-holders. According to the petitioner there is no conflict in the bye-laws and Section 48(8) of the Act as amended and, therefore, the provisions of the bye-laws would remain intact.
2. When this petition came before us on 19-2-1991, a show cause notice was ordered to be issued fixing an earlier date, in view of the ongoing process of election. In response to the notice, Shri R. G. Waghmare, Senior Advocate, assisted by Shri Sapre and Shri Wadnerkar, entered appearance for respondent No. 2 and Shri C. L. Yadav, learned Government Advocate appeared for respondents Nos. 1 and 3. A detailed reply has been filed on behalf of respondent No. 2. We, therefore, heard the petition finally with the consent of the parties, looking to the urgency of the matter.
3. Shri L. P. Bhargava, learned counsel for the petitioner submitted that Section 48(8) of the Act puts an outer limit on the members of committee popularly called 'Directors'. It does not raise the number to 15 where the number is smaller than 15. In support of his contention, Shri Bhargava also invited our attention to Rule 43(1) of the M. P. Co-operative Societies Rules, 1961, wherein a duty is cast on the society to specify in the bye-laws the number of the members in the committee of such society and it has also been provided that such number shall in no case be less than 5. Shri Bhargava submitted that this clearly meant that Rule 43(1) provides the minimum number of directors whereas the amended Section 48(8) of the Act provides the maximum number of directors. Where the number of directors in a particular society are already within the aforesaid minimum and maximum limits, it cannot be said that the number of directors should be raised to 15. According to Shri Bhargava such an interpretation would make the provision of Rule 43(1) of the Rules redundant.
4. Shri R. G. Waghmare, learned counsel for the respondent No. 2 submitted that the non-obstante clause in Sub-section 8 of Section 48 of the Act would wipe out the provision as to the number of directors in the bye-laws of the society and in all cases 15 will have to be the number of elected posts of directors which would, however, include co-opted members. According to Shri Waghmare, the Hindi version of the amended provision in the Act is clearer and it shows the intention to have uniformity in the number of directors in different societies and to fix the number at 15. In reply filed on behalf of respondent No. 2, it has also been contended that the election process was underway and huge amount of expense had already been incurred and because of this it would not be just and proper to stay the election process or interfere with it at this stage. A plea that an equally efficacious remedy is available Under Section 64 of the Act has also been raised.
5. The short point involved in this case relates to the interpretation of the recently amended provision of the Co-operative Societies Act. Section 48(8) of the Act reads as under : -
48(8). "Notwithstanding anything contained in this Act or the rules made thereunder or bye-laws of a society, total number of members in the committee of a society excluding representatives elected under Section 48-B, Govt. nominees appointed under sub-section (1) of Section 52 and ex-office members shall not exceed fifteen."
A bare reading of the provision would show that there is no ambiguity which requires reference to Hindi version. We have perused the Hindi version also and we do not find any conflict in the English and Hindi versions either. Though there is a non-obstante clause at the beginning of sub-section (8) aforequoted, it cannot be read in vacuum and will have to be read in the context of the whole provision. The words 'shall not exceed fifteen' appearing at the end of sub-section (8) would show that the non-obstante clause applies only to the societies having more than 15 members in the committee according to their bye-laws. In the case of societies in which the number is already less than 15, obviously, the non-obstante clause does not apply because there is no conflict between sub-section (8) of Section 48 of the Act and the provisions of the bye-laws of such Society.
6. The intention of Legislature in enacting the provision is clearly to limit the maximum number of members of the committee. The intention cannot be said to be to fix the number of members of the committee. If that had been the intention the words used would not have been shall not exceed fifteen' but would have been 'shall be fifteen'. To interpret the words shall not exceed fifteen' to mean 'shall be fifteen' would be doing extreme violence to the plain language used by the Legislature and would in fact be legislating instead of interpreting the legislation.
7. There is considerable force in the contentions raised by Shri Bhargava that Section 48(8) of the Act read with Rule 43(1) clearly show that while Rule 43(1) casts a duty on a society to prescribe the number of members of its committee and also fixes a minimum limit of members at 5. Section 48(8) of the Act prescribes maximum limit. Within this minimum limit of 5 and maximum limit of 15, freedom has been given to the Societies to fix number of directors or members of committee under their bye-laws. Obviously, as the Bank having made a provision which is neither violative of Rule 43(1) nor violative of Section 48(8), the number of directors in case of the Bank would be as prescribed by its bye-laws and would not be 15.
8. From the programme of election annexed as P-l to the petition, we find that nomination papers have been scrutinised on 15-2-1991, the list of candidates has been finalised on 16-2-1991 and the polling is going to take place on 22-2-1991. It would not be proper now at this stage to stop the polling and order the entire process to be followed again. The grievance of the petitioner can be redressed by ordering that the elections which are now being held shall be treated to be held not for 14 posts as declared in the election programme but according to bye-laws, the elections can be declared to be held for the 10 posts only, as 3 posts out of 10 have to be reserved for females, Scheduled Castes and Scheduled Tribes, one for each, 4 posts have to be reduced from the general category and instead of 11 candidates being declared elected from the general category only 7 can be ordered to be elected from the general category. Thus even though the elections will take place on the basis of the programme already announced, the only difference would be that from the candidates contesting in the general category the first seven on the basis of numerical strength of votes secured shall be declared elected in place of first 11 who would have been elected according to the election programme published.
9. For the aforesaid reasons, this petition succeeds and is hereby allowed with the following directions. It is directed that the elections shall take place as per programme (Annexure P-l), but instead of declaring elected 11 candidates from the general category, only first seven candidates on the basis of number of votes secured shall be declared elected instead of declaring first 11 candidates to be declared elected as per the election programme. There shall be no order as to costs.