Judgment

D. A. DESAI

( 1 ) CONSTRUCTION of Section 73-B of the Maharashtra Co-operative 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. 7732/83 :

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 on 11/06/1959. It is a specified society within the meaning of the expression in Section. 73-G (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 S. 144-C, the Collector having jurisdiction in the matter notified the programme of election on 29/10/1981. 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. 00 during the year immediately preceding as required by Sec. 73-B of the Act. Poll was held on 12/12/1981 and the counting of votes took place on Dec. 14, 1981 and the result was declared on Dec. 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 S. 144-T before the Additional Commissioner, Nasik, calling in question the election of respondents 3 to 16 to the Board of Directors of the first 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 S. 73-B 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. 00 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 neednot clutter the record here. The Additional Commissioner as per his judgment and order dated 8/02/1982 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 S. 73-B will have precedence over the unamended bye-law 40 and as the election process was set in motion in contravention of the mandatory provision contained in Section 73-B 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.

( 2 ) 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 Hi