Utrane Vividh Karyakari Seva Sahakari (V) Socy. Ltd. . & others vs Laxman Dalpat Patil & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1989 Supreme(Bom) 308

IN THE HIGH COURT OF BOMBAY
Mrs. Sujata Manohar, J.
Utrane Vividh Karyakari Seva
Sahakari (V) Socy. Ltd. others... Petitioners.
Versus
Laxman Dalpat Patil others ... Respondents.
Writ Petition No. 3147 of 1988, decided on 19-10-1989.
Advocate appeared :
Pramod N. Joshi, for petitioners.
A.G. Pawar with S.J. Bagwe, for respondents 1 to 3.
Umesh Desai, for respondent Nos. 4 to 8.

Headnote:Sections 73-C (3)-Bye-law of the Society, No. 38-A-Scope of-The electoral college is not restricted to members of particular category, but all members constitute the electoral college.
       The bye-laws of the Society did not provide for any separate constituencies for election of the members of the Managing Committee. It 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 the 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-borrower 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 provisions 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.
       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 societys bye-laws, there is a provision for a separate voters list of non-borrowing members and a separate voters list for others. This Election Rule 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 candidates to be elected by him.
       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.

JUDGMENT - Mrs. SUJATA MANOHAR, J.:---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)1, 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 mem

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