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1994 Supreme(Bom) 527
IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
B.N. Deshmukh T.K. Chandra Shekhara Das, JJ.
Haribhau Ramrao Roham and others .... Petitioners.
Versus
The State of Maharashtra and others .... Respondents.
Writ Petition No. 2619 of 1994, decided on 22-9-1994.
Advocates appeared :
R.N. Dhorde with M.Y. Deshmukh, for petitioners.
S.B. Bhapkar, A.G.P., for respondents Nos. 1 to 5.
Kishore Gadhave Patil, for respondent No. 6.
V.D. Hon, for respondents Nos. 7 and 8.
Headnote:Section 73 (A) (S)-Expression "aggregate.
Conotes the likelihood of some gap between periods-The discontinuance or cessor as a designated officer-Comes into effect only after the expiration of the period of 10 years in aggregate and not before the Aurangabad Bench.
[Hariban Ramrao Roham v. State, 1995 cn 46 (Born)],
Section 73-A (5) (as amended on 1-7-1971)-Scope.
If the provisions carefully, what is provided for is that a person shall not continue to be a designated officer of any society enumerated in those categories for a period of more than 10 years in the aggregate and at the expiration of that period, any such person shall cease to be a designated officer of that society and shall not be eligible for Being re-elected or reappointed as a designated officer until a period of one term of the Committee has elapsed, after completion of the aforesaid period of such ten years. The cesser or discontinuation as designated officer is to be effective from the expiration of the aggregate period of more than ten years. The word aggregate itself indicates that there is likelihood of gap between the holding of the office as a designated officer. The legislative history of these provisions also indicate that the earlier provision regarding the period being consecutive has been replaced by the word aggregate. The word consecutive indicates continuation of the period, while the word aggregate contemplates that there is likelihood of some gap between the period and inspite of such a gap, the completion of 10 years is must for disentitling a person to continue as a designated officer. Therefore, the discontinuance or cesser as a designated officer comes into effect only after the expiration of the period of ten years in aggregate and not before that, In the present case, the Respondent No. 7 was Vice-Chairman from 1978 to 1984 as he had not completed 10 years in aggregate lit that time, the period regarding discontinuance or cesser as a designated officer cannot be said to commence from that date. Such commencement will be effective only after the completion of ten years period as designated officer in aggregate. The period of 10 years in aggregate is completed now and had not completed at the time of the end of his first term as Vice-Chairman. Having regard to the clear mandate in the provisions, there is no scope to consider that the date on which the first term as Vice-Chairman has come to an end, cannot be said to be the date of the commencement of the consideration of the expiration of the period for discontinuance as a designated officer as the Respondent No, 7 had completed 10 years period now, the discontinuance will be at the end of expiration of such period and not before that, inspite of the gup for one term."
In view of the various amendments at different stages made to Section 73-A (5), as perviously discontinuance was to be effective after six years of consecutive period. According to him, he had already completed six years, and by virtue of the provisions existed then, he had discontinued as designated officer from 17-6-1984 till 13-6-1989. According to him, having regard to the provisions existing then, the period of one term after the completion of six years period was already over. In view of exhaustion of the period and also the exhaustion of one term lapse, the Respondent No. 8 is elected as Vice-Chairman in the year 1989. By applying the present law, this Respondent No. 8 is being punished twice under the provisions of the Maharashtra Co-operative Societies Act. According to him, therefore, be provisions of Section 73-A (5), as existing, now should not be applied in the case of Respondent No. 8 Court is unable to appreciate this contention also. The change in legislation is required to be taken into consideration and the present case will be governed by the provisions which exist now. The provisions which were existing prior have no application to the case in hand.
2. This petition is filed for declaring the respondents Nos. 7 and 8 as disqualified to continue to be the designated officers, viz., Chairman and Vice-Chairman of the respondent No. 6 - sugar factory, in view of the provisions of section 73(A)(5) of the Maharashtra Co-operative Societies Act.
3. As the matter was before the Commissioner of Sugar-respondent, on 6-9-1994, during the pendency of this writ petition, we have directed the respondent No. 2 to decide the matter relating to the disqualification of respondents Nos. 7 and 8. Now, the Commissioner of Sugar-respondent No. 2 has decided the matter holding that respondents Nos. 7 and 8 are not disqualified by his order dated 17-9-1994 produced at page No. 69-B of this petition.
4. The order passed by the Commissioner is also challenged in this petition in addition to the initial prayer of disqualification of respondents Nos. 7 and 8.
5. Shri Dhorde, Advocate for the petitioners, contended that the respondent No. 7, who is the Chairman of the sugar-factory-respondent No. 6, has completed 10 years period in aggregate as a designated officer and the provisions of section 73-A(5) of the Maharashtra Co-operative Societies Act are squarely attracted and he ceases to be the Chairman of the sugar factory from the date on which the 10 years period is completed or thereafter.
6. We may mention here that the dates of assumption of office as designated officers by the respondents Nos. 7 and 8 are not disputed. Respondent No. 7 - Bhanudas Damodar Patil Dandwate was Vice-Chairman of respondent No. 6-society from 3-12-1978 to 17-6-1984 i.e. for the period of 5 years and 45 days, and thereafter he was elected as Chairman of the said society from 13-6-1989 to 13-6-1994 i.e. 5 years and 28 days. Thus, he has competed period of 10 years and 73 days in aggregate as a designated officer while the respondent No. 8 - Bhaskarrao Jadhav was elected as Vice-Chairman of respondent No. 6 - society from 1969 to 1973. We are told at the Bar that he was elected on 13-9-1969 to 13-11-1973. Thereafter, he was elected as a Chairman from 13-12-1978 to 17-6-1984 i.e. for a period of 5 years 169 days and thereafter again elected as Vice-Chairman of the said society from 13-6-1989 to 13-6-1994.
Though this respondent No. 8 was elected as Vice-Chairman on 13-9-1969, for the purpose of consideration of the period for cesser as a designated officer under section 73-A(5), the period as Vice-Chairman from 1-7-1971 will have to be taken into consideration ignoring the earlier period as the amended provision of section 73-A(5) was introduced and brought into effect from 1-7-1971. Taking the earlier period from 1-7-1971 to 13-11-1973 (for the period elected as Vice-Chairman from 1969 to 1973), it is admitted position that if all the period is clubbed together in aggregate, the respondent No. 8 has completed 14 years and 73 days. Thus, the respondent No. 7 has completed, in aggregate, as designated officer, 10 years and 73 days; and the respondent No. 8 has completed 14 years and 73 days on the date on which this petition is filed in this Court. Thereafter also, these respondents are continued as designated officers till today.
7. Shri Dhorde has invited our attention to the provisions of section 73-A(5) including the proviso to the said section. He has further invited our attention to the decision of this Court reported in A.I.R. 1988 Bombay 399 : 1988(1) Bom.C.R. 632, (The Bhandara District Central Co-operative Bank Ltd. v. State of Maharashtra and another)1, and the decision of Supreme Court in A.I.R. 1993 Supreme Court 59, wherein the provisions of section 73-A(5), as amended from time to time, have been considered, including the Constitutional validity of the provisions of said section. This Court as well as the Supreme Court had held that the provisions of said section to be valid and also considered as to how the period is to be calculated for the purposes of
